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United States v. Hollings, __ M.J. ___, No. 07-0084/MC (C.A.A.F. June 19, 2007). Judge Baker for a unanimous court. Judge Baker continues in his role as CAAF's principal expositor of the law governing members challenges. Here CAAF rejects a defense argument that a unit personnel officer had sufficient connection to the legal processing of the case that he fell within R.C.M. 912(f)(1)(G)'s prohibition against a legal officer serving as a court-martial member. CAAF also determined that the record contained no evidence of actual or implied bias, even if the liberal grant mandate were to be applied.
United States v. Mack, __ M.J. ___, No. 06-0943/NA (C.A.A.F. June 19, 2007). Chief Judge Effron for a unanimous court. Mack involved, in part, a breaking restriction offense. CAAF held that the military judge erroneously submitted the legality of Mack's restriction order to the members rather than resolving it himself, as controversially provided by the New line of cases. The defense ingeniously pointed out that the military judge had granted extra sentencing credit for unduly harsh conditions of pretrial restriction, thereby rendering the unlawfulness of the restriction order the law of the case. Au contraire, ruled CAAF. The portions of the restriction order could be parsed and the unlawful conditions did not implicate the two portions of the restriction order that Mack was convicted of violating. Ruling on the issue de novo, CAAF concluded that the relevant portions of the restriction order were lawful.
CAAF also rejected a legal sufficiency challenge to Mack's conspiracy to obstruct justice conviction. Does anyone ever receive relief from CAAF under the Jackson v. Virginia standard? My next "What Would Bill James Do?" installment will be a statistical look at CAAF's outcome in legal sufficiency challenges to see whether it's even worth raising the issue.
CAAF also blessed NMCCA's resolution of the post-trial delay issue. NMCCA decided the case 1,830 days after Mack's court-martial. Finding that the post-trial delay was unreasonable and unexplained, NMCCA reduced Mack's DD to a BCD. CAAF held that due to the absence of prejudice resulting from the delay, this Tardif relief was sufficient.
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- Congressional Research Service, The Constitution of the United States of America, Analysis and Interpretation: Analysis of Cases Decided by the Supreme Court of the United States (2002) with 2006 supplement
- JAGINST 5803.1C, Professional Conduct of Attorneys Practicing Under the Cognizance and Supervision of the Judge Advocate General (9 Nov 04)
- JAGINST 5810.2A, Military Justice Regulations (17 Sep 93)
- JAGMAN, JAGINST 5800.7E (20 Jun 07)
- Law Library Microform Consortium, Military Law Collection
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21 comments:
The Hollings opinion serves as a cautionary reminder to appellate counsel who are not only creative with their interpretation of facts, which is justified, but who take the additional step and raise issues on appeal with precisely zero facts on the record in support of their arguments. Judge Baker could, and likely was tempted to be, much more direct than is indicated by his juridious wording "We are left to wonder whether we are reviewing a different record of trial" and "On this record, [this argument] is at best a reach." (emphasis added)
Both appellate defense and government counsel of all services must remember that appellate courtroom practice is to pursue the truth of the matter within possible readings of the actual facts, not the facts as counsel would wish them.
Caveat interlocutor.
Sacroiliacamentum
To clarify for the record, Sacroiliacamentum has absolutely no relation to Sacramentum.
My apologies for any nominal similarities (and for the typo, viz, judicious (juridious???)).
Howard Truth (Sacroiliacamentum)
Sacroiliacamentum,
It does seem a bit over the top to suggest there were "precisely zero facts on the record" when CAAF granted review.
Kudos to Brian for his candid remarks. As anyone knows Brian will tell you, he probably argued more cases before CAAF than any uniformed lawyer in the history of the court, and is one of the best appellate advocates I have ever met. To suggest that he would submit a case to the court with "zero facts" to support him is inappropriate.
Advocacy requires creativitiy, but reliability demands accuracy. When two different appellate courts have commented on the inaccuracy of one's factual assertions, it is time to reconsider one's approach, or one's work may be deemed unreliable.
While it might be comforting to wrap yourself in the mighty flag of "advocacy," the one and only purpose of appellate advocacy is to persuade. You can lament being some sort of misunderstood hero but whining won't get you closer to the mark next time. Taking on the essence of CAAF's legitimate criticism of your work product might, however.
An interesting conundrum for advocates everywhere: does your obligation to zealously represent Client A oblige you to make arguments that, while colorably within the ethical bounds of candor to the court, nonetheless might damage your credibility?
If so, what of your obligations to Clients B, C, and D, who you represent concurrently and whose prospects might have been enhanced had you kept that credibility intact?
In a very unusual step, all 5 judges on the court joined in declaring that they were unsure they were considering the same record of trial from which the appellant's counsel was arguing. The reasonable man would view this as a gentle but pointed comment that counsel played too fast and too loose with the facts of the case. Counsel can defend on the ground that the issue must have had some merit or CAAF wouldn't have granted the petition for review. But court's grant petitions for review for many reasons, and sometimes they grant on a case they shouldn't have. As a military officer, one should accept the CAAF's counseling, vow to do better in the future, and move on.
I have served with LT Mizer and all those that think he should take all five CAAF judges gentle advice that he played loose with the facts either misapperhend CAAF's role or misapperhend LT Mizer's role in this case, or any case. CAAF decides cases, they don't advocate positions and they don't counsel military officers. When they say they don't see the record the same they are deciding that issue not advocating that counsel should not have brought the case to the court. I am sure LT Mizer's military superiors are perfectly comfortable with how he argued the case. Furthermore, how LT Mizer argued the case is a function of serving his clients interests and only his clients interests. So long as their is a colorable argument, and he articulated the argument above noting that if you read the AdminO's role as assisting the legal officer OR certifying a record, you must advocate your client's interests and there is no ethical question about detriment to other clients. You would only have an ethical issue if you failed to advocate for your client to protect your reputation, a problem in the uniformed justice system--but not one that in my experience with Lt Mizer has ever been an issue for any client. Those that see this as a lesson for appellate counsel probably have an issue with this ethical standard if they even considered not making an argument because they feared a court would strenuously disagree with them.
The late Professor David Mellinkoff wrote a wonderful book called, "Conscience of a Lawyer." The book centers on a case from English legal history presenting the issue of whether a lawyer may ethically advocate for the acquittal of a client he knows to be guilty.
I first read the book when I was a young idealistic captain. I distinctly remember reading portions of it while on leave in London, sipping bitter at a pub with a view of the Tower Bridge. I remember thinking that the book demonstrated the virtue of the legal profession.
Curiously, I reread the book last year, after my idealism had been worn down. (Oddly enough, the venue for my second reading was the Disney Magic cruise ship.) My reaction to the book was quite different. While I still thought it was brilliant, this time I read it as a bit of an indictment of the cynicism of the legal profession. Curiously, I seemed to find that the same book vindicated whatever my view of the legal profession was at the time I read it.
But regardless of when I read it, I am certain that it will support the view that LT Mizer's handling of the Hollings case was an example of what lawyers are supposed to do. (I don't pretend not to be biased -- I, too, have been stationed with LT Mizer and I, too, believe him to be one of the best lawyers in the military. Hey, No Man, you're tipping your secret identity a bit. Better head back to Wayne Manor.)
Mellinkoff also discusses Lord Brougham's defense of Queen Caroline against King George IV’s charge of adultery. Broughman argued:
"An advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and, amongst them, to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others."
That role may be morally beneficial, detrimental, or neutral to society as a whole. As I've suggested, my own view of that role has changed considerably over time. But I think there can be little doubt that advancing the interests of the client through lawful means is, in fact, the role of the defense counsel.
In Broughmanesque fashion, Rule 5.4 of the Navy Rules of Professional Conduct provides, "Notwithstanding a judge advocate's status as a commission officer subject, generally, to the authority of superiors, a judge advocate detailed or assigned to represent an individual member or employee of the Department of the Navy is expected to exercise unfettered loyalty and professional independence during the representation consistent with these Rules and remains ultimately responsible for acting in the best interest of the individual client."
Isn't that exactly what LT Mizer did?
Now I haven't discussed Hollings with LT Mizer, though I would be happy to do so. (Hey Brian, want to grab a beer and talk about Hollings -- preferably at a Nats game?) But my guess is that he analyzed the facts and determined that the only way he could win meaningful relief for his client was to convince an appellate court that one of the members had been a de facto legal officer. So he set out to do that in order to accomplish his mission and fulfill his duty of unfettered loyalty to his client. That's his job. The court disagreed. In this case, that was its job. The system worked. But the system works only when fine advocates like LT Mizer do their job. Maybe I'm returning a bit to the idealism of my youth after all. Where should I read Mellinkoff's book for the third time?
I too served with LT Mizer in the appellate defense division for nearly a year, and I strongly suspect that the petition and supplement in this case may have been the product of United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). Those unfamiliar with military practice may not know that Grostefon requires attorneys to raise meritless but not frivolous issues with military courts. “But he is, after all, an advocate, and if he errs, it should be on the side of raising the issue.” The Court went on to say:
In considering the relative viability of issues, the spectrum runs from clearly reversible error at the one end to purely frivolous at the other. Many, if not all the errors urged by the accused with the assistance of his trial defense counsel will fall in between.
While it has become practice to cite Grostefon when raising such issues, many of us never did so if the issue had some merit because it would send a clear signal to the appellate courts that you and the client had parted ways on the subject. Importantly, Grostefon does not endorse this practice. While it may protect you from relatively benign comments such as those offered by the C.A.A.F. in this case, it also meant that you had abandoned your client. Many of us took snide remarks offered by the NMCCA in stride-a practice that has returned to vogue I am told. Our superiors, who were fully aware of the situation and who were privy to attorney-client information, never questioned us. I think that it is important to note that the Court in this case did not allege that this issue was frivolous.
I wonder just what LT Mizer should have done in this case to satisfy the Monday morning quarterbacks above? If the issue was raised pursuant to United States v. Grostefon and the Court granted review, was he not permitted to argue every reasonable interpretation of the facts even if the government and later the Court disagreed with that interpretation? Should he just have conceded the case and let PFC Hollings give oral argument a try? I suspect that none of those dispensing free, anonymous advice above have ever served as an appellate defense counsel or been faced with the many ethical dilemmas involved with military appellate practice. If the facts are as I suspect, then LT Mizer should be applauded for bearing the brunt of the Court’s criticism so that his client did not have to. That is his job: advocacy.
We are having a veritable online Code 45 pseudonymous reunion.
Boy the appellate defense contingent has come out of the woodwork in full force. You guys truly are the unsung heroes of the military justice system (wiping away tears).
But seriously, the comments above (and I was not one of the commentators) struck me as fairly temperate in tone, much more so than the multiple comments that are castigating the posters who had the audacity to actually point out a plausible conclusion to draw from CAAF's actual language (which has been contorted somewhat by those shouting down the anonymous posters).
If this blog is just for appellate defense types to lionize each other, maybe those of us who haven't been in the well with Judge Baker 19 times ought to go away, as we are obviously unable to comment intelligently on military appellate jurisprudence not having "been there, done that."
John O'Connor should take the pseudonym -- sanctimonious. One snide dude.
Don't go JOC. You complete me. (I am making a little heart with my fingers right now.) I must admit to having watched with some amusement this string grow longer and longer today as appellate defense (past and present) struggled against the anonymous goliaths at NMCCA. While I don't think that you need to have practiced before a court, or to have even seen an appellate judge to comment on appellate court decisions, you might want to proffer some basis, experience or your second job as Judge Baker's pool boy, before claiming to know the judge well enough to read his mind. Being dead, I have not argued nineteen thousand times before the CAAF so I have no idea what Judge Baker is thinking tonight like those who claim to do so above. I would agree that some of the comments above offer constructive criticism. For instance, I read Sacrementum's comment to be just that.
I for one am not concerned with what Sacrementum rightfully calls "gentle but pointed" criticism by the court or the "gentle but pointed" criticism that is generally present in this string.
Guert, you complete me as well. You had me at hello. Show me the money.
Seriously, I agree with everything you say (in this post), sentiments you express far better than me.
Actually, Anonymous (if that's your real name), I don't think my post was sanctimonious at all. Snide is probably fair comment, sarcastic might work too. I thought (and think) that sanctimonious would fit other posts in this thread better than mine.
Potential snideness aside, I associate myself with the comments from Sacramentum and Guert.
LT Mizer:
Like you, I just wish this thread would end, but I have to comment on your latest. I agree that there is a huge difference between, on one hand, tempeate, reasoned observations made in some of these posts and, on the other hand, what you call sinister suggestions of a lack of candor. Like you, I agree that the former are fair comment but, based on my read of the court's opinion, the latter are, as you said "at best a reach." (By the way, if your choice of that phrase was with wry intent, well done).
Oh, and I'll be the first to admit that my first post in this thread (which didn't deal with the merits of the court's decision) was, on reflection, probably more strident and obnoxious than called for.
I think it ironic that the judge who stirred this comment-fest and who is considered "CAAF's principal expositor of the law governing members challenges" has never tried a case, defended an accused at trial, or pursued an appeal. So, "those who can’t do, teach?"
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