Tuesday, February 26, 2008

Still another reason to hate Project Outreach

We have had some spirited debates about the pros and cons of Project Outreach. As longtime CAAFlog readers know, to me the biggest pro is the bizarre case of United States v. Cabrera-Frattini. My list of cons is longer. Here's another one to add to the list: appearances at Project Outreach arguments are now apparently being handed out as prizes.

Here's what has me worked up today. On Wednesday evening, CAAF will hear oral argument in the case of United States v. Gallagher, No. 07-0527/MC, at George Mason's law school. The law school's web site tells us that as "part of Project Outreach, the Court will allow Mason Law student Matthew Kuskie, chosen by competition, to submit a brief as amicus curiae and argue for 10 minutes before the Court on behalf of the appellant." Chosen by competition? Is Project Outreach devolving into Project Runway? (Plagiarism alert: I stole that line from a friend of mine.) Did the first runner-up receive a year's supply of Rice-A-Roni?

Competitions to appear before a panel of distinguished jurists should be confined to moot court. Gunny Gallagher is doing 13 years in confinement. It is inconsistent with the solemnity due to both his case and a federal court for an oral argument appearance to be offered as a prize. Appearing at CAAF oral arguments should be limited to counsel for participants and amici who have a true interest in a case or the military justice system. Even if CAAF finds it useful to continue going on the road, it should rethink its practice of hearing oral argument from law students during those trips.

22 comments:

Anonymous said...

Being awarded a prize on random chance and winning a competition based upon skill are two different things.

The impression I get from the article you link is that the law student, Captain Kuskie (Army? AF? USMC?), was the best advocate at moot court, "winning" the moot court "competition", even though the article does not expressly state the nature of the competition.

I attended one of the Project Outreach arguments this term. The best advocate, by far, was one of the law students. He did a much better job, frankly, than either of the attorneys in the case, and did more the clarify and explain the issues before the Court in 10 minutes than either gov't or defense in their alloted 30 minutes.

Jeffrey said...

As one of the attorneys who wrote the brief for Gallagher, I look forward to having this law student tell me what I've missed in my 8 years of practice and 3+ years of appellate work.

Anonymous said...

I'm sorry Jeffrey, but I've been practicing law for almost 25 years, with a good portion of that in the appellate arena, and I still miss things that others (even law students) may see. Being confident in your skills and your argument is a good thing, but too much confidence can blind. Perhaps that is why the law student's argument in the earlier Project Outreach was so good; his eyes were opened and ready to see.

John O'Connor said...

As they would say in Dead Men Don't Wear Plaid, I am an "Enemy of Carlotta" when it comes to Project Outreach. Something I've noticed this Term that probably has occurred before but I didn't notice: several Project Outreach cases have civilian counsel for the appellant. In fact, I vaguely recall that one case has a DC-area retained counsel traveling out of the area to argue at a law school. Who pays for that attorney's travel expenses? Is this done with the appellant's consent? If I were an appellant, I'd be pretty irritated if I hired a DC-area appellate lawyer and then had to foot the bill for him to travel to, say, South Dakota for an oral argument before a DC-based court.

Jeffrey said...

My comment was only partially tongue-in-cheek. I've seen some very good amicus arguments myself, and I agree that these arguments are sometimes better than those of counsel. They could easily be better than my own babbling. My arrogance on this particular case stems from the facts that I watched this trial when it took place; I've repeatedly discussed the case with the trial counsel; and I knew the NCIS agents involved in this case very well. I really don't know what this law student will add that the three appellate counsel who have looked at this case didn't already consider and consciously reject. I also agree with the sentiment that no matter how good the arguing law students are, these outreach arguments frequently come off looking like a dog and pony show.

Having said that, I still hope for Gunnery Sergeant Gallagher's sake that Captain Kuskie's argument knocks my sock off.

Bill Cassara said...

As Gunny Gallagher's lead counsel, and the one who will be presenting his argument, I am thrilled to have CPT Kuskie arguing. He is arguing a different perspective than I am, and has shown a keen grasp of the case. If the court adopts his position over mine, great.

Anonymous said...

Wouldn't these complaints apply to any of the amicus? No amicus will have the in depth knowledge of the trial matter. I have contributed to amicus briefs for public interest groups on several occasions. The "in depth" knowledge of the case complaint would apply to any of those briefs and arguments.

Anonymous said...

Caaflog, you are way too hard on these student advocates. Some murder clients get lawyers who sleep through their trials (which still meets Strickland), so its not so bad having a wide-awake student advocate. If your objection was based on displacement of scarce time or attention from the lead appellate counsel, then you might have something. But the way I see it, its just an add-on of 10 more minutes of argument. Not too different than a discussion they could be having with their clerks, anyway.

Nelson's Right Eye said...

I know of two cases where civilian counsel paid out of their own pocket to participate in a PO argument. Both of the clients believed that their cases were getting more attention as PO cases than they would have received on the home field (another point for debate perhaps). And if I was ever invited to do a PO on an aircraft carrier, I would be there faster than the rush getting out the door at the end of Day 2 of the CAAF conference. . .

Anonymous said...

Just an observation, but in my experience when an intern and/or law student has assisted in pleadings or at argument, the results have usually been positive for the appellant. There are only four rationales that I can see for this: (1) a statistical anomaly; (2) selective use of the intern and/or student for case likely to bring positive results; (3) the intern and/or law student substantively assisted in the outcome; and/or (4) the court erred on the side of the appellant in on those close issues of fact. If #3 or 4 was at all a factor then I fully support project outreach, etc...

Anonymous said...

Gentlemen, this is CPT Matt Kuskie here on the eve (well not really, it's 0200) of my oral argument as amicus curiae. You might imagine my astonishment as I was wasting time on the internet tonight to find that I was a topic of discussion.

I am obviously completely unqualified to weigh in on this debate. I did want to provide a brief bio, and then comment on my experience in participating in this competition, for whatever it's worth.

To answer the original question, I'm an Army Captain attending GMU Law under the auspices of the Funded Legal Education Program. I'm a graduating 3L, and with any luck, like all of you, I will soon be a member of the bar.

The original poster was correct that I was selected from a pool of competitors. Each of us submitted briefs in support of the side of our own choosing. We then had to argue before a panel of judges, selected by the Inn of Court. I was the Inn's nominee to argue as amicus.

I understand the original poster's concern about my lack of qualifications in appearing before the CAAF (I share those concerns!). All I can say is this experience is extraordinarily humbling, and I am taking it quite seriously. Actually, the entire reason I'm awake at 0200, is I'm nervous and I'm still mooting :) During each of my last two summers, I interned at the Army's Defense Appellate Division. Under very close supervision, I had the opportunity to draft appeals and supps. for CAAF in the past. This is my first appearance before the Court, however, and I don't want to let Gallagher, my school, the Army, or any of you down.

After being selected, I expanded my competition brief into a product that adhered strictly to the Court rules. I can't say how many times I revised my own brief, but I have a supervising attorney who reviewed it twice. Several JAGs from the Army Defense Appellate Division provided edits and helpful feedback.

Whatever you might think about Project Outreach or my appearance tomorrow before the Court, please just know that this has to be the most scrutinized CAAF brief in history. And, I assure you I'm quite concerned about the outcome. I'm also grateful for the court's time, and for this learning experience. As a future member of the JAG Corps, I can't imagine a better opportunity.

Best,

Matt

Jeffrey said...

Captain Kuskie, I sometimes forget how widely read this blog is. Please don't take general criticisms about letting law students make amicus arguments in appellate cases as a criticism of you or your abilities personally. Although I haven't read your brief, other counsel have told me that it was extremely good. I just don't really know how appropriate it would be to have, say, even a young Dwight Sullivan argue a case for which they don't have a special interest.
That notwithstanding, I wish you the best of luck with your argument.

Anonymous said...

Capt. Kuskie,

I wish you great luck this evening! Bill Cassara is a fine attorney and if his comments regarding you are correct,Joe will be in good hands. I trust Bill and pray that you both have prepared well. Thank you for your comments and honesty. I am sure you prepared hard and under a large amount of scrutiny. My family wishes you well.

Jim Gallagher - brother of Joey.

John O'Connor said...

Capt. Kuskie:

I hope you have an oral argument that is rewarding and enriches your educational experience. While I'm no Project Outreach devotee, I really don't have a problem withy students arguing once the decision to take the show on the road has been made.

Unlike others on this blog, however, I can't say I wish you luck on the merits. Unless Gallagher has a really good explanation for why he had pictures in his briefcase of kids engaged in sex acts, or child porn on the computer, I can't think of a good reason to hope that he walks on these charges.

CAAFlog said...

Okay, this is frustrating. I just spent about a half an hour drafting my thoughts about the previous comments but blogger lost it. So here's a way scaled back version.

First, CPT Kuskie wrote a very engaging post in anticipation of this evening's argument that reflected very well on his advocacy skills. But I still don't think he should have been allowed to appear before CAAF this evening.

CPT Kuskie was appearing on behalf of the George Mason American Inn of Court, an organization with no apparent reason to be concerned about "whether the Navy-Marine Corps Court of Criminal Appeals erred by finding that the search of Appellant's closed briefcase, located in the garage of Appellant's home, did not exceed the scope of his wife's consent to search the areas of the home over which she had actual or apparent authority," the principal issue in Gallagher.

The Inn's web site tells us that the Inn's mission "is to foster excellence in professionalism, ethics, civility, and legal skills for judges, lawyers, academicians, and students of the law in order to perfect the quality, availability and efficiency of justice in the United States." http://www.law.gmu.edu/innofcourt/mission.html.

So the Inn's mission is, in a word, educational. Now, I have no doubt that appearing before CAAF is a highly educational experience for a law student. But it is emphatically NOT the province or duty of the judicial department to provide educational experiences. Allowing a law student to make an oral argument as the prize for prevailing in a competition is beneath the stature of a federal appellate court.

The George Mason American Inn of Court's lack of concern about the Gallagher case and its outcome is reflected by the fact that it moved out of time to file its amicus brief. See United States v. Gallagher, __ M.J. ___, No. 07-0527/MC (C.A.A.F. Feb. 7, 2008).

Some Project Outreach experiences have been worse than others. There was the case where one law school organization wanted to sponsor law students to argue on both sides of the issue, demonstrating the purported amicus's lack of interest in the merits of the case. And there was the case in which counsel for a military death row inmate with a direct stake in the case's outcome wasn't allowed to file an amicus brief while two law students were not only allowed to file amicus briefs, but were given 10 minutes each at oral argument. Compare United States v. Roberson, 64 M.J. 403 (C.A.A.F. 2007) with United States v. Roberson, 64 M.J. 426 (C.A.A.F. 2007). [Insert familiar disclaimer here.]

Does anyone know of any other appellate court in the land that regularly allows law students to present oral arguments on behalf of amicus parties with no apparent interest in the merits of the case?

Anonymous said...

The only thing inappropriate about last night's amicus curiae oral argument by Matt Kuskie were the rhetorical questions he received from Judge Stucky. It was like watching an episode of "American Idol" instead of a CAAF argument.

John O'Connor said...

Anonymous:

You can't leave us hanging like that with the "rhetorical comments" remark. What questions was Judge Stucky asking and what, if anything, did they say about how the court vierwed the case?

Jeffrey said...

Okay, my hot wash comments on this argument I think supports both sides. As the recording of CPT Kuskie's argument will show, he argued ably. He responded well to a tough panel and I think he did an excellent job. What the recording will not show is that this argument took place in a law school lobby or rotunda. The Court took two pauses while law students walking by or standing around took empty seats. Now, I've happily done courts-martial in a tent in Iraq, so I'm not normally one to stand on ceremony. But I still think that argument before the highest military appellate court rates greater solemnity than this. I think we mislead the law students that we are educating about the awesome responsibility of criminal prosecution and defense by treating appellate argument like dinner theater.

John O'Connor said...

Jeffrey, now THAT comment sums up a good deal of what I don't like about Project Outreach.

Anonymous said...

O'Connor,

If you want to know what Judge Stucky asked Kuskie, and the manner in which he went about it, just listen to the recording of the hearing. It speaks for itself.

John O'Connor said...

Thanks, Anonymous, for nothing.

I just listened to the entire Gallagher argument through the end of amici's argument (because my player wouldn't let me jump ahead), and I still have no idea what questions you found offending. I basically wanted to know what you thought was inappropriate and you, knowing the answer to my question, wouldn't tell me and instead sent me on a wild goose chase that didn't answer my question.

Anonymous said...

JOC seems pretty cranky, but who can blame him. Judge Stucky is always pleasant; cannot imagine what inspired the ire of the other anonymous.