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CAAF today issued its opinion in United States v. Roach, __ M.J. ___, No. 07-0870/AF (C.A.A.F. June 26, 2008).
In an opinion written by Chief Judge Effron, a three-judge majority held that the Air Force Court of Criminal Appeals erred by affirming the findings and sentence where the appellate defense counsel had neither read the record of trial nor filed any substantive submission on behalf of the accused and where the court had not taken adequate steps to inform the accused that: (1) it was proceeding without a brief from counsel and (2) he could vindicate his right to counsel in alternate ways, such as by requesting new counsel, hiring a civilian counsel, or briefing the case pro se.
Judges Stucky and Ryan dissented.
[DISCLAIMER: I am one of Senior Airman Roach's counsel.]
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Posts
27 comments:
SO what the heck was the ADC doing?
After reading this opinion I wonder what the AF is doing to the ADC and the supervisor.
They have both been promoted and assigned independent duty staff billets.
The AF must be so proud.
The Navy Defense Appellate Division had a problem like that and the prisoner (a marine) went to CAAF pro se and named the JAG as the respondent.
Not surprising... in that alot of convicted military members who are confined without a whole lot of access to their attorneys get railroaded in the appellate process. Thank God there are civilian judges who oversee what the military puppets do..... Especially where the majority of military members in the appellate process can not afford civilian counsel - and if they can, the government will prolong the appeal until they run out of money!
It is a conspiracy to keep down appellants. If so, appellate defense counsel are complicit.
A hollow victory for the Accused. However, I read the collective opinions as a pretty big black-eye to the Air Force's Appellate Defense Division. I wonder how close the Court came to naming names (although they practically did that by listing rank, first letter of last name, and position).
Ironic that the dissent's reaching the prejudice prong foreshadows how this will play out on remand.
So was this all strategery?
Or was AF Appellate Defense really that overworked that no one could get to an 81 page record?
Anon: 0949:
Looks like "strategery" to me. Original appellate counsel was able to file a petition for grant of review two business days after the lower court's decision and three new appellate counsel were able to file within one month the supplement with two new issues. My question is: how big is the Air Force's Appellate Defense Division? Seems suspicious that so many counsel were needed for this "massively complex" guilty plea PTA case.
I'm usually one to give folks the benefit of the doubt but I can't find it here - either 1) they dropped the ball on an easy case or 2) they intentionally sandbagged it in a game with the lower court. Option 1 is preferable but still not very palatable. Thankfully, looking at the case law cited in CAAF's opinion this type of case appears to be an aberration.
Anon @ 0924: Apologies if you're already aware of this, but your comment suggests the possibility you aren't -- it's fairly common for military appellate courts to list counsel by rank and initial when their performance is discussed in the court's decision. Doesn't happen all the time, but it's not particularly unusual.
The names of the original appellate counsel in this case can be found on the front page of the AFCCA opinion, which is found here.
If that's the case, then it seems somewhat silly for CAAF to call them Capt D and Lt Col S throughout the opinion. And why does CAAF (or the other military appellate courts for that matter) care about protecting the names of ineffective counsel anyway? The courts don't seem to be doing anyone other than the attorneys involved a service by doing so.
...those poor guys have to take a public beating from CAAF AND dig their collegue's knife out of their backs? No more happy hours across the hall...
Although he never comes flat out and says so, Judge Stucky certainly leaves the impression that the defense was attacking the post-Moreno AFCCA rule requiring counsel to get the client's permission to keep asking for enlargements of time. That also appears to be the inference the AFCCA wants us to draw in its opinion. Imagine defying an appellate court and telling them if they don't like it to grant my client Moreno credit. But it looks like CPT D and LTC S refused to follow the court's order and got away with it.
Regardless of whether you side with the majority or the dissent, it seems to me the AFCCA should have done better in disposing of the case. Can you imagine what would have happened if counsel had tried to do that before a federal or state judge or court of appeals. AFCCA should have disbarred both counsel -- or at least ordered a show cause hearing -- and ordered the JAG to get the accused a new appellate counsel.
Any accused in the Air Force, should check the AFCCA for the names of the deficient counsel and make sure he or she gets someone else.
This could be completely off-base, but the facts as set forth in the CAAF opinion make me wonder if the appellate defense division was creating a test case, in a case that seemingly doesn't have much in the way of litigable issues on the merits (essentially a case where there is nothing to lose on the merits). It just looks like the appellate counsel were almost defiantly refusing to file a brief, and refusing to provide the facts sought by AFCCA in passing on an enlargement request, to force AFCCA to decide the case without an appellant's submission.
The CAAF majority's reminder of things that AFCCA can do to deal with these situations makes me wonder whether things could get ugly. I could imagine AFCCA holding status conferences on delayed cases where they seek information on what counsel have been doing every day since the case was assigned, etc. I hate to raise the old "did you sleep last night" rejoinder from my days in the Marine Corps, but the next time counsel seeks one extension too many and claims that they would be IAC, I wonder if the court might start cross-examining counsel on how many ballgames they've gone to, or what time they've left each day. No counsel really wants that inquiry because, on that standard, there's almost ALWAYS more time we could have worked if we had to.
During the period of time that Roach was initially before the AFCCA, Air Force appellate defense counsel made little effort to conceal their disdain for the court's efforts to obtain case-specific information when considering enlargement requests. The responses were largely boilerplate; in one instance, cited during one of the court's hearings, an appellate counsel had cut-and-pasted another attorney's promises that "he" would exercise "his" best efforts to move the case along ... without changing the gender-specific pronouns to reflect that she was, in fact, female.
I have no idea whether the same attitude prevails there now. I hope it does not.
J'OC: Your point is well taken. During the days immediatley preceeding DIAZ v. JAG, the attorneys at Navy Code 45 were routinely working 1/2 days and filing for multiple enlargements blaming their workload. It took a pro se ex-writ to put them back in line.
Last Anon,
And this accusation is based on what exactly?
I'm sure any moment now J'OC, and all the other who get their panties in a bunch when anonymous accusations are made against CCA judges, will be along to decry your lack of integrity for making anonymous and unsupported allegations against appellate defense counsel.
Any moment now...
Any moment...
Very last Anon:
Speaking of making childish accusations while hiding behind the cloak of anonymity . . .
As for the Aonymous poster immediately before you, I thought about commenting but not for the reason that you somehow think I should have. The Anonymous poster immediately before you has my basic point a little bit wrong, I think. My point wasn't that appellate defense isn't working hard; I don't know if they are or aren't. My point was that this could get ugly if AFCCA responds to Roach by calling status conferences and saying things on stale cases like "how many hours did you work this past Sunday," or "what time did you leave each day in the last two weeks." Even the hardest working lawyer is constrained in such situations to admit that there was time when work COULD have been done but wasn't. And when a counsel says he can't file a brief without being IAC, a CCA might respond by wondering how a counsel could take a whole Saturday off, or go obn leave, or go to a baseball game, when his client is awaiting appeal, there is a deadline for the brief, and the counsel says he would be IAC if forced to file a brief. Without casting aspersions, that is an ugly scenario I could foresee happening.
As for the Anonymous poster who said something about Code 45, I don't know if those facts are true or not, the poster conceivably COULD know those facts to be true, the poster didn't state specific names while hiding behind the mask of anonymity (as you are), and the statement was descriptive and not particularly nasty, so I saw no reason for me to respond at all.
As an attorney at Code 45 "[d]uring the days immediatley [sic] preceeding [sic] DIAZ V. JAG," I can assure readers that half days were not the norm. And I'm no more ashamed to have my name associated with that time period there than I am to have it associated with my posts.
Like any organization, there was a range of abilities and work ethics. And, sure, several of us P.T.ed or (gasp) knocked off an hour early on a Friday to go to what passed for an O Club at WNY. I hope that's still the case there now. Chief Diaz's original counsel (before the writ--the one that didn't file an initial pleading, blaming her work load) was probably the most diligent attorney there. When she worked half days, it was usually on Sunday.
Ironically (and to bring the thread back on topic) one of the reasons she couldn't file an initial pleading in Diaz as I recall is that NMCCA was issuing her "May orders" in other cases. The court would threaten to decide cases without a defense brief if none were filed within a certain amount of time. They always cited United States v. May for the proposition that they could do that. Kind of strange, since, as CAAF points out in Roach, May says actually says that CCA can't do that.
After my last post, I thought about posting again and adding that another reason (to answer the last anonymous poster's anonymous query of me) why I didn't step in and comment on the remark about Code 45 was that there were at least 15 regular commentators on this blog who were far better equipped than me to address those remarks. Marcus Fulton's post makes that point.
As a former client of Code 45 I was very happy with the representation of three of my four assigned appellate defense attorneys over the years.
My very first appellate defense counsel (back in 1992 – 93), in my opinion, wasn’t that good at all. She filed for nine continuances and got all nine; and then filed for a tenth. She never read the ROT in the almost two years she had the case. It wasn’t until after I sought civilian counsel that the division director assigned another counsel – a Marine. My second appellate counsel, the Marine, was excellent and I believe did the best job he could even though I didn’t prevail. NMCMR was so mad at my first counsel, that when my new counsel asked for a continuance to get up to speed on the case, they refused to grant a continuance. In the 1994 NMCMR opinion they spent three pages talking about my first counsel.
In the years 2002-03 when NMCCA ordered two show cause orders and granted several motions in an ex-writ, to include granting a motion to compel, my two assigned appellate defense counsels were good. This was pre-Diaz. I found that I was able to reach each in the afternoon on the telephone. And sometimes they would call me as late at 1630 or even 1700. Many times my civilian counsel would email drafts of briefs to my appellate defense counsel for their review and to make comments. My military attorneys would usually have their reviewed drafts back to my civilian counsel by the close of business days. Often times we had telephonic conferences very late in the afternoon about the issues in my case. So this rubbish about half-a-days I just don’t buy.
You have good attorneys and bad ones. I was fortunate enough to have two really good Navy judge advocates and one Marine (despite losing my case.) Yes, I had one not-so-good appellate defense counsel, but I believe the excellent representation I had after that makes up for the bad one.
As a former Code 45 attorney, there is one other contingency to consider: sometimes I would go home early so I could beat the traffic, see the family, and then get back to work on my home computer. Washington, DC, area traffic is very heavy and sometimes this arrangement made more sense.
I think this is a general principle that applies at all workplaces: you cannot judge the quality of someone's work by their office work hours. Some people gossip and goof off at work, even though they are ostensibly there during the official duty hours.
I also think its in human nature to make hasty generalizations. Upon not seeing someone in the afternoon, say, 3 times, the generalization is that they are "never" there. Which brings up another question: how in the hell do people who are supposed to be working somewhere else have the time to check-up on someone working in another division?
Finally, on balance, the government's job, in most appellate cases, is far easier. If they fail to use the proper citations or arguments to shoot down an AOE, the court will do so, independently. So, they have a "backup."
And, there are multiple and layered ways the government wins: waiver; a basis in law and fact to accept the plea; alternative grounds to sustain MJ's ruling; deference (no abuse of discretion even though the MJ's ruling was questionable); taking a free-shot at appellate counsel; and, finally, just ignoring the issue in passing as having no merit.
But, in their defense, the attorneys who take shots at appellate defense have nicely pressed uniforms and shiny shoes. They will be promoted.
Christopher Matthews mentioned that some of the AF appellate attorney's enlargement requests were "largely boilerplate."
Does he mean like the decisions of the AF Court in summarily affirming a case or CAAF in denying a 50 page petition? Oh, the horrors!
I have no idea whether these appellate defense attorneys were concealing their "disdain" during the charged time period as alleged. Sounds like a little hyperbole to me. I did notice that some posters here certainly do a fine job of not concealing theirs.
Anon 0339: I gave a specific example of appellate counsel's boilerplate replies to specific questions from the court, but it was by no means the only such instance.
The CAAF decision that is the subject of discussion here made note of the same phenomenon, describing appellate counsel's "rote comments" and "vague references" in seeking enlargements of time, and how requests for specific information were met with replies that "repeated verbatim" the earlier justifications but "did not respond" to the court's concerns about receiving adequate justification for the requested delays.
I don't think characterizing such conduct by counsel as disdainful is particularly hyperbolic. You're free, of course, to defend it as you wish.
Back in BLDG 111 Code 45 was always a ghost town at 1600 despite the huge backlog of cases. When I would wander across the hall I could find no one except for the same two or three that were there all the time, yet Code 46 would get massive enlargement motions, citing caseload.
Your premise is faulty. The sure sgnals for a lazy appellate attorney are not office hours or enlargement requests, but: 1) merit submissions; 2) form letters; 3) the perennial loser: "sentence inappropriateness"; and 4) posttrial delay...with no other issue. Dumb.
But, seriously, you had time to wander the halls? Always?
I close my office to work.
Interesting cultural fact: In America, working with your office door open is considered productive; in Germany, working with your office door open is considered unprofessional. I think the German way makes more sense.
I wish you had knocked on my door; sounds like we could have had a great conversation. Especially after I asked you, "what brings you this way?"
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