Monday, January 28, 2008

Year of the Rat

A week from this coming Sunday, just a few blocks to the north and west of CAAF's stately courthouse, a parade will usher in the Chinese New Year. And what year will this be? The Year of the Rat.

Of course, rats and lawyers have sometimes been analogized to one another. In his serious -- no, serious isn't the right word -- in his scholarly 2005 book about lawyer jokes, Professor Galanter discusses what he calls the "single most prevalent of all current lawyer jokes." Marc Galanter, Lowering the Bar: Lawyer Jokes & Legal Culture 192 (2005): "Why have research laboratories started using lawyers instead of rats in their experiments? There are three reasons: first, there are more of them; second, the lab assistants don't get attached to them; and third, there are some things a rat just won't do." Id. Professor Galanter also adds what he calls "a wonderful coda" that I hadn't heard before: "One problem, though, is that no one has been able to extrapolate the test results to human beings."

So perhaps it is appropriate that CAAF's Year of the Attorney-Client Relationship, as I previously dubbed this Term, coincides with the Year of the Rat. And today, just as the Year of the Pig is preparing to give way to the Year of the Rat, CAAF issued an order and granted review of a petition that solidifies the 2008 Term as the Year of the Attorney-Client Relationship.

I have previously discussed the Air Force Appellate Government Division's motions to disqualify me and linked to this Air Force Court order rejecting the attempt. Today, using reasoning similar to that of the Air Force Court, CAAF rejected another of the motions to disqualify. CAAF ruled:
On consideration of Appellee's Motion to Disqualify, we note that Appellant is represented by appellate defense counsel qualified under Article 27(b)(1), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 870(a). Nothing in Article 70, UCMJ, 10 U.S.C. § 870 limits the discretion of the Judge Advocate General of the Air Force to offer Appellant the additional services of a civilian appellate defense counsel at government expense. Accordingly, it is, by the Court, this 28th day of January, 2008, ORDERED: That Appellee's Motion to Disqualify is denied.

United States v. Roach, __ M.J. ___, No. 07-0870/AF (C.A.A.F. Jan. 28, 2008) (order). This follows a previous CAAF order summarily rejecting a similar motion. United States v. Miller, __ M.J. ___, No. 07-5004/AF (C.A.A.F. Jan. 7, 2008) (order). Since the Solicitor General obviously won't go to the Supreme Court to argue that an Executive Branch official exceeded his authority by hiring a civilian lawyer to assist judge advocates representing servicemembers before military appellate courts, that would seem to definitively resolve this issue.

CAAF also granted review of two issues in Roach, including one that concerns appellate representation:

I. Whether the lower court erred by deciding Appellant's case in the absence of a substantive submission of Appellant's behalf despite this Court's case law holding that it is "error" for a Court of Criminal Appeals to decide a "case without assistance of counsel" for an appellant. United States v. May, 47 M.J. 478, 482 (C.A.A.F. 1998).

II. Whether the lower court erred by holding: (1) that it was not objectively unreasonable for the appellate defense counsel to fail to file a brief on Appellant's behalf during the 182 days between the expiration of Appellant's briefing deadline and the lower court's decision in Appellant's case; and (2) that Appellant demonstrated no prejudice, despite this Court's case law holding that where appellate counsel "do nothing" on an appellant's behalf, the "appellant has been effective deprived of counsel, and prejudice is presumed." United States v. May, 47 M.J. 478, 482 (C.A.A.F. 1998).

United States v. Roach, __ M.J. ___, No. 07-0870/AF (C.A.A.F. Jan. 28, 2008) (order granting review). [DISCLAIMER: as should be apparent from the earlier portion of this post, I'm one of SrA Roach's counsel.]

Here's a link to the Air Force Court's opinion. United States v. Roach, No. ACM S31143 (A.F. Ct. Crim. App. Sept. 13, 2007).


John O'Connor said...

I think CAAF is right on the merits, but I wish they hadn't reached them, and instead held that appellate counsel lacked standing to challenge executive branch judgments on selection of counsel.

In fact, a wonderful way to begin argument on such a motion would have been to ask appellate government counsel the following question: Is it the position of the United States that this appointment is illegal?

Anonymous said...

Caaflog, isn't the wording of Issue II a bit awkward? Is that a triple-negative? If you could, would you like to re-phrase that issue?

Anonymous said...

Perhaps what puzzles me about the gov't oppo to using a certain "civilian" counsel in the DP case, is that it is likely of benefit to the gov't. Using experienced counsel in these DP matters might help avoid the errors of inexperience that often plague DP cases.