Tuesday, October 16, 2007

Daily Journal Roundup & CAAF's Latest Amicus Injustice

As we previously discussed here, CAAF has previously granted law student amicus motions in a case where it rejected an amicus motion from counsel for a military death row inmate where, in the inmate's counsel's view, the facts of the case were similar to his client's case. Today CAAF not only said it would accpet amicus briefs from law students in a case, but did so based on a tardy motion for amicus curiae briefing. Today's Daily Journal notes that students from Indiana University School of Law Bloomington filed a "motion for leave to submit Amicus Curiae briefs belatedly" in U.S. v. Pack (a Crawford confrontation argument case). The Court granted the motion and allowed 10 minutes for oral argument.

While I do not begrudge law students the opportunity to make real arguments in real courts, might this also be a good opportunity to introduce law students to the practice of criminal law post-AEDPA? My first law student practice case was occasioned by the judge informing me that I had not filed a notice of alibi defense and any argument or witnesses about my client's alibi would be excluded. Considering that another law student dumped the case in my lap less than a week before the bench trial, and after the alibi notice deadline (Ohio Crim R. 12.1), I didn't exactly want to kill myself over it. But, I don't think I will ever forget to file a notice pleading. Just a thought.

Round Up:

Anyone have any information on the two latest extraordinary writs to hit the Journal:

Repeat offender (to the DJ, here, here, and here) Morton is back:
Misc. No. 08-8001/CG. Thomas A. MORTON, Appellant v. Captain Brian Judge, USCG, Military Judge and United States, Appellees. CCA 003-07. Notice is hereby given that a writ-appeal petition for review of the decision of the United States Coast Guard Court of Criminal Appeals on application for extraordinary relief was filed under Rule 27(b) on this date.

Also, anyone with gouge on this one from Oct. 11:
Misc. No. 07-8022/AR. G. Jerome HURLEY, Appellant v. Lieutenant Colonel John M. Head, Military Judge, and United States, Appellees. CCA 2007-0865. On consideration of the writ-appeal petition, Appellant’s motion to stay proceedings, and Appellant’s motion to suspend rules and to supplement the record, it is ordered that said motion to suspend rules and to supplement the record is hereby granted; and that said motion to stay proceedings and that said writ-appeal petition are hereby denied.


Anonymous said...

I guess the question is whether CAAF acts like a "real" court. Most real federal courts enforce their own rules. CAAF seems to enforce its rules only when it is convenient to do so. I understand that a waiver of the rules may be in order for good cause -- eg a death, illness, or natural disaster, etc -- but "I forgot - So sorry" just doesn't seem to cut it.

John O'Connor said...

I assume this has to do with "Project Outreach," and the court's sense that going to IU for argument is a little hollow when the court won't let the kids argue.

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No Man said...

I absolutely agree that the grant is related to Project Outreach, the merits of which have been much debated here. However, I think that giving substance to P.O. and denying a motion by counsel with an actual client involved in an actual controversy that has a stake in the outcome of the case should NOT be the SOP for the Court, particularly where the amicus party is sitting on death row. One could also say that if you knew P.O was coming to your school once in ?? years, you should probably be aware of deadlines in the case and that failing to abide by them was . . . less excusable? Maybe they had good cause like a tornado tore through IU Bloomington. I just think the court should be like college football and show a little parity.

Gene Fidell said...

May I come to the Court's defense on this? Whether or not the other litigant should have been permitted to be an amicus, I wouldn't get too riled up about a late student filing. Law students have a lot on their plates, and it's very tough to get students organized at the beginning of a semester to the point that they can learn the Court's rules and prepare a brief, all while juggling their course responsibilities. [Full disclosure: I'm the parent of an IU undergraduate, so I'm not entirely impartial on this one.]