Tuesday, July 29, 2008

Cert petition challenges military appellate defense shops' failure to represent clients before the Supremes

The last several days, we've been having a discussion on CAAFlog about military appellate defense shops' responsibilities when their clients want to seek cert from the Supremes. Given the heavy concentration of current and former appellate defense counsel among CAAFlog's writers and readers, it's a topic the resurfaces from time to time. See, e.g., here, here, here, and here.

You know that old expression about everyone complaining about the weather but no one ever doing anything about it? Well LT Darrin W.S. MacKinnon, JAGC, USNR, has just tried to do something about the problem of military appellate defense counsel declining to file cert petitions in apparently non-frivolous cases. Here's the QP in Ryan v. United States, a cert petition that I understand has been filed at, but not yet docketed by, the Supreme Court:

Whether a military defense counsel's refusal to honor a military servicemember's request to appeal his case to the Supreme Court effectively denies him that right under the UCMJ, and, whether that refusal to appeal constitutes ineffective assistance of counsel?
The full text of the petition, which is well worth reading, is here.

19 comments:

Phil Cave said...

And you are placing the emphasis on certworthy or petitions that have merit. You will remember these very same discussions in the old days.
There is no Grostefon at the Supremes, and it would be unethical it seems to me for a lawyer to file a frivolous petition with the Supremes.

Anonymous said...

I always found the Navy's appellate defense division to be supportive of efforts to file petitions, although it's "cert committee" could be brutal in assessing the merits of a case. I wonder if this represents a recent change in policy or, since it's coming towards the end of a fiscal year, just a lack of resources (In my time, I believe $10,000 was the amount budgetted each year for cert petitions).

Anonymous said...

Back in the days of "The Backlog" there was no time for cert petitions at Code 45.

Anonymous said...

Darrin Mackinnon is a shining point of light in an otherwise dark world.

Anonymous said...

"Point of light" or not, what is his authority to represent the petitioner? Is he simply acting in his capacity as a private civilian attorney?

No Man said...

Wow, Anonymous (2:39 pm EDT) and I think alike, what are the chances of that? The signature block on that petition is possibly the strangest signature block I have ever seen---unless Navy Appellate Defense has suddenly moved to Gainesville, VA. Wasn't that where the JAG TV show HQ was located?

John O'Connor said...

"[U]nless Navy Appellate Defense has suddenly moved to Gainesville, VA. Wasn't that where the JAG TV show HQ was located?"

I think it was Falls Church.

I take it from the context of these posts that the counsel is also at Code 45. My recollection is that JAGs needed authorization to practice law on the side, and the standard authorization letter (such as the one I received when I went on terminal leave) forbids counsel from being adverse to the United States in their authorized pricvate employment.

This is an issue that, in my mind, is worthy of being raised (though the odds of a cert grant seem low), but I wonder if there would have been a better way to do it (e.g., have a private lawyer sign the cert petition).

egn said...

From the cert petition, it reads that the attorney who signed the petition has since left active duty, but remains a reservist. I don't think it would have been a problem for him to sign the petition in a private capacity, but to add the block that indicates his affiliation with the reserves was probably a mistake.

What piques my curiosity is what would have prompted an appellate defense attorney to write such a letter to her client? Couldn't she have sent him a more generic letter declining to represent him at the Supreme Court without rubbing his nose in the fact that he LOST?

I think it's time for the Code 45 leadership to exercise a little good judgment training.

John O'Connor said...

Having given it just a little bit more thought, why isn't the play here to file a TRO in federal district court, seeking a TRO/PI directing the government to provide you with counsel for a cert petition?

Though I shudder to think how this would turn out, I doubt CAAF has jurisdiction on this issue, and I don't think the Supreme Court has original jurisdiction over the issue. So why not file in federal district court?

Anonymous said...

I'm not so sure CAAF wouldn't have assumed jurisdiction over a writ asking for that same relief.

Anonymous said...

This guy is definitely no longer on active duty. It's incredibly poor form, if not unethical, for him to use his military rank in a petition to the U.S. Supreme Court filed as a private civilian attorney, particularly where he is calling out his former colleagues for deficient representation. People in glass houses and all that.

Anonymous said...

Wow, this guy may have lost it. In his "hastily" prepared petition he wrote in just one day, he mis-cited the Army's record for cert petitions, claiming they have filed none since 2002. I believe they've filed at least four in the last year. It's also a nice touch where this fellow takes a shot at the Supremes for Kennedy v. Louisiana. That's always a good idea. I'm sure he'll be remembered...

Anonymous said...

His pleadings are always over the edge, often meritless and frivolous. This seems similar. And this case does not read like a page from "A Few Good Men." Frankly I find that a bit cavalier in approach and poor in form. I have no idea about the Army numbers as mentioned above but if that is true I hope that the Army lets DoJ know but I assume the SG will waive response. However, it would be worth the Army's effort to inform his military chain of command. How is FSO "freelancing" as a defense counsel? Since when does an Appellant get to "IMC" counsel at SCOTUS? While the counsel's letter may be a bit direct it seems clear that counsel found no merit to the claims. Should he have filed anyway?

CAAFlog said...

2057 Anon,

You're right -- the Ryan cert petition's dates are a little bit off. Army DAD didn't file any cert petitions from 18 November 2002 until September 2007 that weren't civilian counsel cases. But in September 2007, DAD appeared to go back in the business of representing Soldiers before the Supreme Court. It filed two cert petitions that month, one of which resulted in the Court asking the SG to file a response, but both of which were ultimately denied. Foerster v. United States, 128 S. Ct. 1066 (2008); Sanchez v. United States, 128 S. Ct. 442 (2007). It appears that DAD has filed three cert petitions since Foerster and Sanchez. The Supremes denied cert in Rhoades v. United States, 128 S. Ct. 2102 (2008), and Wilson v. United States, 76 U.S.L.W. 3673, No. 07-1447 (U.S. June 23, 2008). Rigby v. United States, No. 07-1549 -- a Wilson trailer -- goes to cert conference on 29 September.

Anonymous said...

This all boils down to one question: can the meaning of "frivolous" vary depending on the forum? I'd say that's a distinct possibility given Sup. Ct. Rule 10. Thoughts?

Anonymous said...

They say appellate defense counsel eat their own. This discussion is certainly evidence of that.

Cloudesley Shovell said...

Admitting that your client pointed a loaded 9mm pistol at a subordinate and then trying to pass that misconduct off as "something more akin to fraternity hazing than to [a] criminal offense" is not the way to win cases.

Anonymous said...

Wow, this guy really is a super genius. I can tell he has special inside knowledge of the culture of the military defense community.

Finally, someone who has the courage to say that "many judge advocates" don't aggressively assert their client’s rights. I've never heard that canard before.

I almost wanted to cheer when he wrote that "Defense work is sometimes seen as a necessary, but drudging phase of a longer legal career in which one’s own professional reputation is more important than the client’s interests." Finally, someone who understand us.

Ah, the days of daydreaming about making 0-6 during court-martials, only to be rudely interupted by the military judge asking me if I had any cross for the government's only witness. "No, your honor," I replied, sitting back in my chair. I leaned over to my client, but only briefly, because he smelled so bad. He truly disgusted me on a number of levels. It was about time the government hammer this loser. I gave him a nudge and asked him for the 10th time that morning whether he just wanted to go ahead and plead guilty to comitting adultery with his wife. I reminded him that I hoping to make it to his commander's promotion party that afternoon, but he just shook his head. Damn clients.

Anonymous said...

Darrin v. LCDR R! clash of the Code 45 titans. I really hope SCOTUS grants this insanity.