Wednesday, May 14, 2008

Another two CAAF opinions

CAAF released two more opinions today:

United States v. Hart, __ M.J. ___, No. 07-0247/AF (C.A.A.F. May 14, 2008).

United States v. Navrestad, __ M.J. ___, No. 07-0199/AR (C.A.A.F. May 14, 2008).

Both of them were written by Judge Erdmann and in both of them Chief Judge Effron, joined by Judge Stucky, dissented. The former ruled for the government while the latter ruled for the defense. Again, due to computer limitations, I'll let others provide links and synopses.

35 comments:

BD Cooper said...

Congratulations to Army Defense Appellate Attorneys Captain Nathan Bankson and Major Fansu Ku. Major Ku wrote the briefs in both Lopez de Victoria and Navrestad. Captain Bankson subsequently argued both cases at CAAF. This is an admirable accomplishment by both of them.

DB Cooper said...

Um, that's "DB" Cooper. Whoops.

Cloudesley Shovell said...

Hart is a jurisdictional case, and a very interesting read. I agree with the dissent. The issuance of a DD-214 should be conclusive against the gov't. No way should the gov't be able to undo a valid discharge just because the gov't screwed up and failed to do a sufficient final accounting of pay. That's rewarding the gov't for its own incompentence, which of course breeds more of the same (just as is the case with erroneous CA's actions).

Anonymous said...

Navrestad: CAAF continues its trend of being soft on sex offenders.

CAAFlog said...

Anon,

If that comment is meant as a serious critique, it is far off the mark. CAAF obviously has no interest in trying to overturn convictions in sexual offense cases. Rather, CAAF applies the law as it finds it. Given the large number of sexual offense cases in the military justice system, it is little surprise that sometimes CAAF's good faith effort to apply the law results in overturning the conviction or sentence in a sexual offense case, just as it sometimes leads to CAAF affirming such convictions and sentences.

If the comment wasn't meant as a serious critique, this is an area where making light seems inappropriate.

Anonymous said...

Isn't it a bit of a cop out to just shrug off a sex offender's conviction as "well it's just the system." If there isn't any real doubt that the accused actually committed the crime than the error is just a technicality.

Anonymous said...

Nobody said, or even thinks, "well it's just the system." We expect our government to apply criminal laws with precision and care.

I honestly do not understand your point. "Technicality" is a loaded-term that states your bias before we even get to your reasoning. Is jurisdiction a "technicality"? Is the 4th Amendment a "technicality"? God knows how broadly you think of "technicalities"?

When we start making concessions for sloppiness, even in child-victim cases, the dangerous trend will not stop and will swallow up the innocent, too. The Government can usually re-try these offenders...and next time do it right. So the dangers are not nearly as bad as you imply.

Anonymous said...

One solution to prevent convictions from being overturned on technicalities would be to get rid of appellate courts. However, the risk of trial judges dismissing cases on legal technicalities would still exist, so the trial courts probably need to go too. Any ideas on how we can get rid of that pesky constitution?

Anonymous said...

In light of the crushing national debt and a government gone awry, perhaps a new constitutional convention may not be such a bad idea.

Anonymous said...

Anon 9:45's comment is something I hear pretty regularly from non-lawyers. In fact, when I tell people that I am a DC, that is usually the first thing they ask: "How can you let a child molester walk away on a technicality?"

My best response has been to answer with a question: "Do you think guilty people shouldn't be given fair trials?" 95% of the time, they'll say no, and agree that guilty people _should_ be given fair trials. After that acknowledgment it is usually easier for them to understand the role of a DC and the role of "technicalities."

Or at least they pretend to in order to be polite, and then go home and talk about what a scumbag I am for trying to free child molesters.

Bill Cassara said...

My answer when somebody asks me "How can you represent somebody you know is guilty?" is to tell them "It is a lot easier than representing somebody I know is innocent." It usually ends the discussion.

Anonymous said...

Regarding representing guilty people: 60 Minutes recently had a piece about two defense attorneys who knew an innocent man was serving life in prison for a murder, because their client confessed to them that he was the one who actually committed the murder.

They said nothing, because their so called "defense ethics" prohibited them from revealing a client confidence, though they did seem a bit bothered by it.

That is appalling. Whatever "ethics" rules permit that outcome should be scrapped, and they should be punished for that.

Anonymous said...

Last anon,

What rule would you recommend defense counsel follow?

Anonymous said...

Their should be an ethical escape hatch, just like appellate courts use, for gross injustices. The only way this could work, though, would be to have the equivalent of "use immunity" for the lawyer's own client.

Anonymous said...

To Anon who references "so called" defense ethics. You confuse morals and ethics. To those with a law school education and any working knowledge of criminal law, it is understood that morals refers to personal character while ethics refers to society's application of those morals. Society has determined the value of certain ethical constraints on the moral character of defense attorneys. This is an amazing system that upholds personal freedoms and rights. It asks much of defense attorneys and I applaud those who do for the system that which goes against their very character. Of course any sane person would desire to publicize that a man in prison is there innocently because their client confided in them that the client was actually the guilty party. But it is necessary that they don't. The age old question of "how can you represent so and so because he either did or may have done such and such" is a knee-jerk response without any intelligent thought placed behind it. There is one for sure way to make certain that no client will make any such statement to his attorney...for attorneys to begin disclosing client confidentialities. For anyone who reads this and can't figure out why that would be a bad thing, then perhaps you should move on to a less complex topic.

CAAFlog said...

1445 Anon: That isn't an example of "defense ethics." Rather, that is a simple application of a basic rule of professional responsibility applicable to EVERY lawyer: the duty not to reveal client confidences. See ABA Model Rule of Professional Responsibility 1.6. And the Supreme Court has expressly held that the attorney-client privilege -- an evidentiary rule that is a close cousin of that professional responsibility duty -- survives the death of the client. Swidler & Berlin v. United States, 524 U.S. 399, 403 (1998). The Court offered this rationale for that conclusion:

Despite the scholarly criticism, we think there are weighty reasons that counsel in favor of posthumous application. Knowing that communications will remain confidential even after death encourages the client to communicate fully and frankly with counsel. While the fear of disclosure, and the consequent withholding of information from counsel, may be reduced if disclosure is limited to posthumous disclosure in a criminal context, it seems unreasonable to assume that it vanishes altogether. Clients may be concerned about reputation, civil liability, or possible harm to friends or family. Posthumous disclosure of such communications may be as feared as disclosure during the client's lifetime.

Id. at 407.

Anonymous said...

CAAFlog: I understand that. But do you really think the right outcome is that an innocent person sits in jail? Couldn't that quailfy as some sort of imminent harm whereby the attorney may speak up? Don't you think that there should be a remedy for this?

Christopher Mathews said...

0837 Anon: You asked "But do you really think the right outcome is that an innocent person sits in jail?"

Clearly, the answer is no, and finding a way to correct that result should certainly be of concern to everyone.

I'm inclined to think, though, that the greater concern should be for the system that managed to convict, and continues to hold, an inoocent man. How was the government sufficiently persuaded of his guilt to initiate his prosecution in the first place? How could they, in the absence of actual guilt, persuade a judge to let the case go forward, and a jury to convict? How is it that he languishes throughout the appellate process? There had to have been multiple catastrophic failures of the system of justice to get to the starting point of your question.

I point this out because I've noticed that the same people who assail defense counsel for their "lack of ethics" when representing guilty clients are often the very same people who complain about rules of evidence and procedure that constrain the prosecution and who contend that convicts have too many avenues of appeal.

I appreciate the need for finality, but drawing out the process is often the price we pay for achieving a more accurate result. In fact, I've been mildly surprised that many of the commenters on this site, who profess great concern with the rights of appellants to defend themselves, have embraced a proposal that would strip one layer of review from the military justice system.

Anonymous said...

CAAFlog, this is not merely a theoretical issue. Several months ago, I posted right here (on another string) a clip about a Virginia murder case - a companion case to the SC mental retardation case - where the defense lawyer sought an ethical workaround to admit what his own client had told him some 17 years ago.

The gist of the story was that the defense attorney knew who the real killer was, but was held to silence for all those years. Then, the ethics committee of Virginia, "released" him from that bond. I think the result "worked" because no further harm came to his own client. I will try to go back and find that cite and that string (but a Google search might reveal this story I'm talking about).

BTW: What about the permissiveness of prosecutors seeking dual-theories (multiple offenders) for the same crime? I can't remember - but wasn't their a Florida case that went to the SC where the court said that was OK? So, isn't this the same theoretical situation reversed? Here, the prosecutor (and everybody else) KNOWS that one of the two is innocent. How is that ethical?

Anonymous said...

Proposing to statutorily disestablish of A.F.C.C.A. is to say that it adds no value to the appellate process. That is hard to imagine, when we have a capital case on review.

Anonymous said...

Kind of like the capital case at NMCCA that has been in panel for so long that all of the judges who heard the oral argument have left the Court?

If there is value to that, I'm not seeing it. Sorry.

Anonymous said...

N.M.C.C.A. reversed the findings and sentence in a capital case a couple of years ago. Hard to argue that they added no value to the appeallate process. Granted, it took several years for them to do it. And I bet they did read the briefs!

Anonymous said...

CAAFlog, here is the real-world lawyer ethics story, in a companion case to Atkins:

(New York Times, Saturday, Jan 12, 2008)

For 10 years, Leslie P. Smith, a Virginia lawyer, reluctantly kept a secret because the authorities on legal ethics told him he had no choice, even though his information could save the life of a man on death row, one whose case had led to a landmark Supreme Court decision.

Mr. Smith believed that prosecutors had committed brazen misconduct by coaching a witness and hiding it from the defense, but the Virginia State Bar said he was bound by legal ethics rules not to bring up the matter. He shared his qualms and pangs of conscience with only one man, Timothy G. Clancy, who had worked on the case with him. [. . . . .]

But the situation changed last year, when Mr. Smith took one more run at the state bar’s ethics counsel. “I was upset by the conduct of the prosecutor,” Mr. Smith wrote in an anguished letter, “and the situation has bothered me ever since.”

Reversing course, the bar told Mr. Smith he could now talk, and he did. His testimony caused a state court judge in Yorktown, Va., to commute the death sentence of Daryl R. Atkins to life on Thursday, citing prosecutorial misconduct.

Smith couldn't talk before because it would hurt his client, who was a co-defendant with Atkins.

CAAFlog said...

Two separate threads seem to be calling me out in the comments to this post. I'll address one here and the other in a later comment.

For some reason my proposal to do away with the CCAs as part of a larger military appellate overhaul has emerged as a theme here.

Remember the central aspects of the proposal. Instead of automatic CCA jurisdiction to review most, but not all, court-martial convictions followed by CAAF's almost entirely discretionary second-tier review, my proposal would eliminate the CCAs and make every SPCM and GCM conviction appealable to CAAF, which could sit in panels. Another major portion of the proposal was the adoption of the JO'Cian bargained-for-waiver-of-appellate-review proposal. The resulting system would feature far fewer cases and a much greater proportion of contested-to-dive cases than the current system features. And every case that was appealed would receive the benefit of a ruling on the merits by our nation's highest military appellate court comprised of civilian judges appointed by the President with the advice and consent of the Senate.

A system in which there was only one level of review would be far more efficient than the current system. But some of our recent commentators have questioned whether it would be as desirable.

1322 Anon, who uses a curious first person plural possessive that suggests he or she is a Judge on or staff member of the Air Force Court of Criminal Appeals, argues: "Proposing to statutorily disestablish of A.F.C.C.A. is to say that it adds no value to the appellate process. That is hard to imagine, when we have a capital case on review."

I don't think that question is the correct one. Rather, the proper question is whether the value added justifies the added monetary costs and delay that results from our current two-level review. Two conditions would have to be satisfied in order for that to be true: (1) the results of CCA-followed-by-discretionary-CAAF-review would have to be DIFFERENT THAN the results of CAAF alone review; and (2) the results of the former would have to be BETTER THAN the results of the latter. It strikes me as very unlikely that the two systems' results would be appreciably different. Remember that empirical research suggests that the CCAs' relief rate is less than 3%. And it also strikes me as unlikely that the second condition would be true. So naturally is seems extraordinarily unlikely that both conditions would be true.

As to the second part of 1322 Anon's argument, obviously it isn't the case that the mere pendency of a capital appeal before a court means that court has value. Soviet appellate courts often had death penalty cases on their dockets; that doesn't mean they add value.

The CCAs' reversal rate on capital appeals is quite high: 5 of 9 CCA rulings in capital cases have been reversed in part or completely by CAAF. CAAF has the final word in these cases, so the CCAs' value added is probably insignificant.

1348 Anon argued: "N.M.C.C.A. reversed the findings and sentence in a capital case a couple of years ago. Hard to argue that they added no value to the appeallate process." 1348 Anon must be referring to United States v. Quintanilla, since that's the only case that meets that description. And remember what happened in Quintanilla. CAAF reversed the part of NMCCA's ruling reversing the findings. Now I've argued and believe that NMCCA was right and CAAF was wrong. [Familiar disclaimer: I was one of the appellate defense counsel in the case before NMCCA.] But the point is, what CAAF says goes. Cue Justice Jackson: CAAF isn't final because it's infallible; it's infallible because it's final. (Well, unless the Supremes say otherwise.)

The military is outside the norm in granting two levels of mandatory appeals in capital cases. Tennessee is the ONLY state that does it. And only one other case -- Alabama -- even provides a second discretionary level of review. Every other state dockets death penalty appeals directly in their state court of last resort for criminal cases. And that near-universal practice is sensible unless one assumes both that: (1) the results of an intermediate-appellate-review-followed-by-state-supreme-court-review would be different than state-supreme-court-alone-review; and (2) the former would be better than the latter. Again, that seems unlikely.

I've been a military appellate defense counsel on the active duty side, reserve side, and now civilian side for a combined total of about 10 years. If you gave me the choice of appealing cases in a system where I was guaranteed a review by a CCA and then could seek discretionary review by CAAF (but where the government gets a guaranteed second bite at the apple if it can convince the JAG to certify) or a system in which I get a guaranteed one-level review at CAAF, I would choose the latter. I would be extremely surprised if the rest of the appellate defense community didn't make that choice as well.

But I also believe that such a system is not only tactically preferable to the defense, but also more in keeping with our system of government with its emphasis on civilian control of the military -- as well as constitutional norms for selecting federal judges. So from a citizen's standpoint, I also find it preferable. And as a military officer (albeit reservist), I find the one-step system far more desirable because it would consume far less of DOD's resources and get servicemembers off appellate leave far more quickly.

What I don't know, but what I invite appellate government practitioners to weigh in on, in the unlikely event that anyone is still reading me drone on in this comment, is whether appellate government counsel would prefer the current system or the one-step-appeal-as-of-right-to-CAAF system. I stand ready to be enlightened.

CAAFlog said...

The second thread to which I want to respond is the client confidentiality issue.

0837 Anon -- the central point of my earlier post was that defense counsel don't have different confidentiality rules than other lawyers; we all operate under the same confidentiality rules. I was trying to refute the notion that defense counsel are some sort of sub-ethical Neanderthals with their own special codes. This was in response to 1445 Anon's obviously derisive reference to "so called 'defense ethics.'" (I both assume and hope that 1445 Anon is not a lawyer.)

As later comments suggest, the legal profession's rules of professional conduct spell out very clearly what a lawyer's duty is in situations like those posited and provide very clear procedures for clarifying uncertain issues concerning when lawyers may reveal client confidences. Some lawyers have been faced with the horrible choice to reveal a protected attorney client confidence or to remain silent and allow some great injustice to occur. I understand that and sympathize with them. But when they choose to reveal a confidential communication that is protected under the rules of professional conduct, the consequence of doing so may be that they right the wrong, but they can no longer remain lawyers. I sincerely hope I am never faced with such a conundrum.

Christopher Mathews said...

I really don't know what is meant by the term "far more efficient" in the appellate context.

I'm reasonably certain that a system which incentivates the waiver of appellate rights will result in fewer appeals, which in turn should result in some cost savings. I'm not sure it will result in better or more just outcomes.

Anonymous said...

CAAFLOG: How can a person (even a lawyer) believe that it is better that 10 guilty men go free than an innocent man be convicted AND ALSO believe that it is better that an innocent man be convicted (and potentially executed) than a lawyer violate a client confidence? IS THIS REALLY THE RIGHT OUTCOME??

CAAFlog said...

JMTGst,

My firm belief is that the amount of meaningful relief awarded in the current system and the proposed system would be almost the same. If I'm right and we can obtain our sub-3% relief rate based on one level of review or two levels of review, it is more efficient to get it on one level of review. And I propose taking part of the increased efficiency to broader the appeal right to everyone convicted at a court-martial, which enhances justice.

As to the JO'Cian proposal, it is important to note that it will affect only those who plead guilty. It isn't like people will plead not guilty but enter into a PTA to waive their appeal rights. In fact, under the proposed system MORE SERVICEMEMBERS who plead not guilty but are convicted will have their cases appealed, which is a good thing.

Finally, even if there weren't an efficiency issue, I would support JO'C's proposal. I am firmly in the camp that the government shouldn't limit the accused's right to sell that which the government wants to buy. There are actual capital cases that would have been dealt non-capitally had the accused been empowered to waive the right to appeal. It isn't good for either the accused or the system to force the accused into a mind-bogglining expensive capital court-martial when both the government and the accused would have been happy with a deal for, essentially, LWOP with no appeal. And obviously there are other cases where an accused might get a better deal in exchange for giving up the lottery ticket for a less-than-3%-chance of appellate reversal. In my view, a system in which the accused can't bargain away his or her right to appeal is less just than one in which the accused can.

Anonymous said...

Flailing...

Christopher Mathews said...

I am firmly in the camp that the government shouldn't limit the accused's right to sell that which the government wants to buy.

If the government prohibits its sale, perhaps the government doesn't really want to buy?

I absolutely believe that there are some SJAs and trial counsel who would very much like to buy an appellate waiver. But they're not "the government" -- they're only the government's lawyers. It's not hard at all to envision a circumstance where the waiver would be used, not to foster efficiency, but to facilitate lawbreaking by local officials. I'm sure that a waiver provision would have been very helpful to officials at Travis AFB, for example, in continuing their routine practice of violating service regulations and RCMs governing the treatment of pretrial detainees.

I would be willing to bet that if appellate waivers are permitted, we will see them become a routine part of PTAs, and that there will be no corresponding reduction in the caps agreed upon under the new system. The government will receive more than it currently receives, and accuseds will get nothing more in return.

John O'Connor said...

The notion that an accused should be able to sell what the "government" wants to buy is just one, and in my mind not nearly the most compelling, reason why accused's should be permitted to waive appellate review.

The other (and more compelling, in my kind) reasons for allowing such waivers include: (1) conserving time and resouces devoted to appellate review of simple guilty plea cases (from preparation of a verbaitm record through mandatory Article 66 review); (2) allowing appellate resouces to focus on cases involving issues contested at trial, which presumably would allow for faster and more thoughtful appellate review; (3) getting rid of the kabuki dance where clever trial defense counsel try to get their clients to say enough to get the MJ to take the plea but leaving open an argument for the opposite result on appeal; and (4) ending appellate review of invited errors.

There are other reasons that I'm sure are presently escaping me.

I am not someone who is an advicate for getting rid of the CCAs. I'm not violently opposed to the concept, but I'm not one of its advocates. I will say that I would be a supporter of CAAFlog's proposed package of appellate review reforms, which includes getting rid of the CCAs, but the real attraction of that package to me is that it would allow waivers of appellate review.

I also think it's true that the government wants to buy appellate review waivers because CAs, SJAs, and TCs would like to buy them. Right or wrong, they ARE the government because they are the ones who are empowered to deal away sentincing relief in return for concessions from the accused. The rule against dealing away appellate review is a relic from a far different time, with far different court-martial procedures. That doesn't by itself mean that the rule is inappropriate. But it's a greater fiction to say that the "government" wants to ban appellate review waivers in PTAs based on the inertia associated with leaving an old rule in place than it is to say that the "government" doesn't want to buy appellate waivers.

Anonymous said...

JO'C, your defense of waivers is, well, defense-worthy.

However, I must quibble with your reason #(3) getting rid of the kabuki dance where clever trial defense counsel try to get their clients to say enough to get the MJ to take the plea but leaving open an argument for the opposite result on appeal.

While this may seem, retrospectively and in theory, like a strategic-gambit, it really isn't. If you see a kabuki dance, it is only because you are hearing music in your own head.

First, in reality, if providency falls apart, then the defense lawyer's reputation suffers. He or she is sometimes considered almost incompetent. (Although this is unfair, because many clients are simply just not that intelligent, coherent, or articulate - I think psychologists use the phrase "linear" in their thinking). So, defense counsel are not trying to get their clients to say just enough so that x,y,z...they are just trying to get their clients to say enough, period.

Second, one of the tragedies of military defense is how little the trial shops and appellate shops actually work together. Generally, they do not train together, hold conference calls or brainstorm together, or communicate that frequently. I think a call from appellate defense is more threatening for trial practioners. So there is no coordinated rope-a-dope on these dives.

Third, you let the military judges off the hook here. The problem is that too many judges gundeck these dives. Its bad puppet-theater. Just a few more questions, maybe 5 or 10 more minutes, and sometimes a pre-emptive strike on some of the more obvious and recurring affirmative defenses! I love the appellate rule of law that judges are presumed to know and apply the law, but then somewhat of the opposite rule when it comes to whether they should foresee relatively obvious implied affirmative defenses.

Finally, the most distrubing aspect of dives is that all parties suspect...and sometimes know...that a certain percentage of these guilty pleas are bogus, contrived, robotic responses to get the benefit of the bargain. The institutional incentives overwhelm the truth-seeking goals of trials. Appellate review is necessary to avoid the abuses if this system becomes unchecked.

This in no way attacks your other supports for waiver of appellate review. I just don't think your reason #3 is strong.

Anonymous said...

JO'C, I just posted this response somewhere else, but its better continued here, on this providency post.

Your defense of waiving appellate review is, well, defense-worthy.

However, I must quibble with your reason #(3) getting rid of the kabuki dance where clever trial defense counsel try to get their clients to say enough to get the MJ to take the plea but leaving open an argument for the opposite result on appeal.

While this may seem, retrospectively and in theory, like a strategic-gambit, it really isn't. If you see a kabuki dance, it is only because you are hearing music in your own head.

First, in reality, if providency falls apart, then the defense lawyer's reputation suffers. He or she is sometimes considered almost incompetent. (Although this is unfair, because many clients are simply just not that intelligent, coherent, or articulate - I think psychologists use the phrase "linear" in their thinking). So, defense counsel are not trying to get their clients to say just enough so that x,y,z...they are just trying to get their clients to say enough, period.

Second, one of the tragedies of military defense is how little the trial shops and appellate shops actually work together. Generally, they do not train together, hold conference calls or brainstorm together, or communicate that frequently. I think a call from appellate defense is more threatening for trial practioners. So there is no coordinated rope-a-dope on these dives.

Third, you let the military judges off the hook here. The problem is that too many judges gundeck these dives. Its bad puppet-theater. Just a few more questions, maybe 5 or 10 more minutes, and sometimes a pre-emptive strike on some of the more obvious and recurring affirmative defenses! I love the appellate rule of law that judges are presumed to know and apply the law, but then somewhat of the opposite rule when it comes to whether they should foresee relatively obvious implied affirmative defenses.

Finally, the most distrubing aspect of dives is that all parties suspect...and sometimes know...that a certain percentage of these guilty pleas are bogus, contrived, robotic responses to get the benefit of the bargain. The institutional incentives overwhelm the truth-seeking goals of trials. Appellate review is necessary to avoid the abuses if this system becomes unchecked.

This in no way attacks your other supports for waiver of appellate review. I just don't think your reason #3 is strong.

Anonymous said...

Ooops, I blew it. Copied to the wrong place. Please see Monday, May 19, New Copy of Army Lawyer.

Anonymous said...

For the record, Major Ku failed to understand the issues in Navrestad and actually opposed this case. Captain Ham was the one that actually championed the issue. He put the issue in the Grostefon section because Major Ku refused to sign the brief. That's why Navrestad was a specified issue.