Monday, January 07, 2008

Is it permissible for a Judge Advocate General to hire a civilian to provide appellate representation with military appellate defense counsel?

[DISCLAIMER: I am the civilian counsel whose employment is at issue.]

Since August, my day job has been working as a civilian appellate defense counsel at the Air Force Appellate Defense Division, providing representation in conjunction with detailed military appellate defense counsel. In three of the cases to which I've been assigned, the Air Force Appellate Government Division argued that it was illegal for a government-employed civilian counsel to represent a servicemember on appeal.

The government's argument was premised primarily on: (1) Article 70(d), which says that the "accused has the right to be represented before the Court of Criminal Appeals, the Court of Appeals for the Armed Forces, or the Supreme Court by civilian counsel is provided by him"; and (2) the discussion to R.C.M. 1202, which provides that civilian appellate counsel "will not be provided at the expense of the United States."

On 17 October, in this unpublished order, the Air Force Court disagreed. United States v. Witt, No. ACM 36785 (A.F. Ct. Crim. App. Oct. 17, 2007) (order). The Air Force Court reasoned that "Article 70(d) expressly affords the appellant a right to be represented on his appeal, by a civilian attorney only if provided by the appellant. . . . Article 70(c) affords appellant the right to be represented on his appeal by a commissioned officer qualified under section 10 USC § 827(b)(1). These two provisions represent the rights of the appellant, not limitations on The Judge Advocate General's authority to hire civilian attorneys to supplement and assist commissioned Judge Advocates. So long as the representation of the appellant by Mr. Dwight Sullivan is not executed in contravention of either of the appellant's rights afforded under Article 70. UCMJ, 10 U.S.C. § 870, this Court will not interfere with the employment of civilian counsel."

I think the Air Force Court got it exactly right. Under Article 70, a Judge Advocate General couldn't provide an appellant with a civilian government attorney in lieu of military counsel, but the Judge Advocate General is free to provide such a counsel in addition to a military appellate defense counsel. The comment in R.C.M. 1202's discussion to the contrary is based on an incorrect reading of Article 70 and is non-binding. See Manual for Courts-Martial, United States, Pt. I, ¶4 discussion (2005 ed.). (In fact, as CAAF's case law makes clear, the discussion isn't even technically part of the Manual for Courts-Martial. Willenbring v. Neurauter, 48 M.J. 152, 168 (C.A.A.F. 1998).)

CAAF today appeared to agree with the Air Force Court's conclusion -- though we don't yet know CAAF's reasoning. Upon calling a case that I was orally arguing today, Chief Judge Effron announced from the bench that CAAF was denying the government's motion to disqualify me as the servicemember's counsel. Later today, CAAF issued this order memorializing that ruling. United States v. Miller, __ M.J. ___, No. 07-5004/AF (C.A.A.F. Jan. 7, 2008) (order). While I can't be sure, my guess is that CAAF will explain its reasons when it rules on a similar motion pending in United States v. Roach, No. 07-0870/AF.


John O'Connor said...

I think the court's analysis is obviously right. But I have a fundamentally more basic question.

How the hell is an appellate government division arguing to the military appellate courts that what the JAG has done is unlawful. Can't the JAG simply tell them not to challenge your appointment? Doesn't the appellate government division ultimately work for the JAG? Holy unitary executive, Batman.

Marcus Fulton said...

If CAAF flips AFCCA, maybe you and Judge Graham can set up some alternative Air Force appellate system for the disqualified.

John O'Connor said...

Maybe Jeff Zander could be the commissioner on this Island of Misfit Litigants.

Seriously, if I were a judge (shudder at the thought), I would tell the government that if it has a problem with the government, it should take it up with the government. These courts don't exist to mediate executive branch squabbles.

Anonymous said...

Well said, JO'C. Silly and embarrassing stuff. Frivolous, in fact.

Anonymous said...

Maybe the Air Force JAG WANTED a ruling that appointing civilian counsel did not violate Art 70, so the issue would be settled and he could hire more of them. Then all of the appellate divisions could be largely civilianized, with a few judge advocates around to co-sign the briefs. Maybe the appellate duties could be transferred to the OGC?

Anonymous said...

Some civilian attorneys in each appellate division for continuity and expertise would be a good idea. I'm not advocating the position of the previous post (total civilianization) - but a decent civilianized appellate core could enhance the continuity and professionalism of appellate advocacy.

Christopher Mathews said...

While I disagree with the merits of the position taken by the Appellate Government division, I'm not offended by their decision to take it.

True, appellate government counsel "ultimately work for" TJAG -- but The Judge Advocate General is not merely some uber-prosecutor, and they are not merely his personal lawyers.

Anonymous said...

Amazing that military courts of appeal are authorized to hire civilian judges, and NMCCA had them in the 1970's (and even asked recently about authority to hire them) but App G would take this position.

John O'Connor said...

Christopher Mathews:

I understand that TJAG isn't some sort of uber-prosecutor, but this is a case of the United States going to court to challenge before a panel of judges the decisions of the United States. I just don't see it as the place of the courts to mediate executive branch disputes.

I also would not be offended if appellate government took this position (though I think it's weak). I do believe, however, that this is a position to be taken within the executive branch, and not through Article I courts.