Wednesday, March 12, 2008

CAAF supports motherhood revisited

We previously discussed a motion filed by my Air Force Appellate Defense Division colleague Capt Tiaundra Sorrell to move up her oral argument in United States v. Perez because the original Perez oral argument date -- today -- was two days after her baby's due date. After CAAF granted that motion and moved the Perez argument date to 5 February, the Government sought reconsideration, maintaining that there was no medical reason the argument couldn't proceed as scheduled. CAAF ultimately accepted the Government's fall-back position and moved the argument back a day to 6 February.

It turns out that CAAF was wise in its approach. Had the argument proceeded today as originally scheduled, the discussion would likely have been interrupted by the crying of Capt Sorrell's four-day-old son. At last report, all were doing well.

7 comments:

Anonymous said...

All well and good, but if AF appellate counsel are anything like other branches, it's a bit ridiculous to act like there is some great attorney-client relationship being maintained. This concept is a complete farce in military appellate practice...unless you're dealing with a capital case. My guess is anyone in the shop could have handled the case - and likely had the same amount of contact as the pregnant attorney with the client (which means a brief 10 minute phone call if that)...though you have to give credit where credit is due and nice to see CAAF cares;however, let's not overdo it.

CAAFlog said...

When I was a captain at Navy-Marine Corps Appellate Defense, the standard of practice was to send a letter to the client and trust that if the client cared, the client would contact the counsel. It was a horrible, horrible system. As a reservist supporting Navy-Marine Corps Appellate Defense for three years, I called every single one of my clients. I had to track down some using LEXIS PEOPLE FINDER or even the USSearch commercial service, but I did find and speak with every single one. And I would never, ever do it any other way. Not only is it the professional and right thing to do, but it makes appellate defense work far more satisfying to at least speak to the person you are representing -- and it is also often possible to meaningfully help the client with collateral matters. It's sometimes even possible to obtain meaningful relief for them within the system.

And, when appellate counsel practice in this way, they are NOT fungible.

Anonymous said...

Anonymous, I applaud you for being candid. You are more right than you know. But while I agree with your premise, I must dissent from your conclusion.

Caaflog, you are absolutely correct about the standards of professional ethics require diligence and proactive communication with the client. Unfortunatley, we are a minority. There is no premium placed on genuine client contact by the appellate defense shops. The default routine is to send the letters and put the burden on the client.

The reason that this is wrong is because most criminal defendants (convicts) simply view the Government as Big-G...and make no intuitive association that the form letter from their appellate defense attorney really reflects that they have an advocate. A human voice conveys this idea better than a form letter. In addition, details and concerns naturally come out in a conversation that won't come out in a record of trial.

CAAFlog said...

Let me also add that my current gig, I have found clients even more interactive because of the ubiquity of e-mail. A client who might never call you on the phone might often send e-mails to you -- which, again, is a very good thing.

Anonymous said...

...ah...unless the Government is monitoring those emails. Have you read your banner? "By logging on to this computer, you hereby consent to waive all of your constitutional rights. You are only protected by discretion, not by law or regulation." I think ADM Fallon wrote a few indiscrete emails...and look what happened to him.

Anonymous said...

CAAFlog,

Sadly, I concur with your observations on the interaction between the average appellate defense counsel and the appellant.

I've also wondered for some time, though, about what model of attorney-client relationships the various appellate defense divisions follow and whether they all follow the same model.

Specifically, do they view the division as a "firm" with all the counsel assigned to the division as being in the same firm, or do they view the counsel as essentially having their own individual practices that happen to be housed within the division.

The reason I ask is that their practices suggest that sometimes they view it one way and sometimes another, apparently driven by whatever practice is easiest or cheapest.

For example, I believe Parker and Walker (death penalty appellants alleged to be co-conspirators with conflicting claims as to their respective roles in the offense) were detailed appellate counsel within the same Navy appellate defense division, suggesting a strict one "firm" model was not being employed.

On the other hand, I understand it's common Navy practice to relieve and reassign appellate counsel on the occasion of the original counsel's transfer from the division, with nothing more than a notice to the appellant, suggesting in my mind that the division views the relationship as being primarily between it and the appellant.

SD

Nelson's Right Eye said...

I agree with anonymous' underlying premise that there are some attorneys who do only the bare minimum in communicating with their clients during the appellate process. However, I read no factual predicate on which to assume that the "pregnant attorney" provided nothing more than a "brief 10 minute phone call if that." As a matter of professionalism, let's not loosely attribute the sloppy practices of a few as the "likely" behavior of an attorney identified by name -- especially in a forum where A/C confidentiality prohibits her from defending her good name by detailing her communications with her client.