Wednesday, July 30, 2008

CAAF and representation at the Supremes

In 2006, Staff Sergeant Lovett filed a pro se petition for writ of mandamus at CAAF, asking CAAF to order the Judge Advocate General of the Air Force to provide him with counsel to represent him before the Supreme Court in challenging CAAF's affirmance of his court-martial conviction and 14-year sentence. Lovett v. United States, 64 M.J. 232 (C.A.A.F. 2006). CAAF granted the requested writ without dissent. CAAF ruled:

The Uniform Code of Military Justice provides: "Appellate defense counsel shall represent the accused before the Court of Criminal Appeals, the Court of Appeals for the Armed Forces, or the Supreme Court . . . when requested by the accused . . . ." Article 70(c)(1), UCMJ, 10 U.S.C. § 870(c)(1) (2000). Petitioner's case is not final as a matter of law. See Article 71(c), UCMJ, 10 U.S.C. § 871(c) (2000). The immediate question before us is not whether counsel must file any particular matter in the course of representing a servicemember, but whether counsel may discontinue such representation before the case is final as a matter of law. Nothing in the record of the present case established a basis for counsel to sever the lawyer-client relationship. Accordingly, it is ordered that the Judge Advocate General of the Air Force shall provide appellate defense counsel to represent Petitioner for the purposes of review of his court-martial under Article 67a, UCMJ, 10 U.S.C. § 867a (2000).
Id. at 232-33. We discussed that ruling here.

Appellate defense counsel subsequently filed a cert petition on SSgt Lovett's behalf, which the Supremes denied. Lovett v. United States, 127 S. Ct. 1333 (2007). We previously discussed that cert petition here.

So a servicemember in Cpl Ryan's position could probably obtain appellate representation by filing a pro se petition for extraordinary relief at CAAF. The sticky wicket is that a servicemember in Cpl Ryan's position probably wouldn't know without a lawyer's advice that he or she could obtain representation by filing a pro se petition for extraordinary relief at CAAF.


John O'Connor said...

The Imperial CAAF is alive and well. It certainly protects CAAF's jurisdiction to issue an order requiring counsel for litigation before a different court.

Anonymous said...

Interesting result as we struggle with whether a post-Denedo petitioner is entitled to appellate defense counsel at government expense to file an appeal within the military court system. While this holding appears to be based in Article 71 "finality," the "finality" of Article 76 has been called into question, so a challenger like Denedo could presumably DEMAND representation, even if the Services tried to impose limits to conserve appellate resources.

Cloudesley Shovell said...

What the Supreme Court said in Clinton v. Goldsmith:

CAAF is not given authority, by the All Writs Act or otherwise, to oversee all matters arguably related to military justice, or to act as a plenary administrator even of criminal judgments it has affirmed.

What CAAF does: Continues to act as plenary administrator of all things arguably related to military justice.

Kinda reminds me of Herb Myerson's speech about the firm deciding whether to follow the law. (Intolerable Cruelty)

John O'Connor said...


We're singing from the same hymnal (at least regarding this).

Cloudesley Shovell said...

J O'C--

True, but you said it much better.

"Imperial CAAF" sums it all up in only two words.

Anonymous said...

Why does the music from Star Wars keep popping into my head?

Anonymous said...

It's not "imperial" at all, it's simply the military's "unitary" judiciary.