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Friday, September 26, 2008
Supremes docket pro se IFP military cert petition
During this year's CAAF orientation, we learned that CAAF has a practice of granting any supp in a case where the accused received confinement for at least 30 years. United States v. Swanson is a case in point. NMCCA affirmed his sentence to LWOP in this unpublished opinion. United States v. Swanson, No. NMCCA 200501593 (N-M. Ct. Crim. App. Nov. 13, 2007). CAAF granted review and summarily affirmed. United States v. Swanson, __ M.J. ___, No. 08-0280/NA (C.A.A.F. June 20, 2008) (summary disposition). Now the Supremes have docketed a pro se IFP cert petition in the case. Swanson v. United States, No. 08-6476. We have no information about the QP in the case.
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5 comments:
Well, the the unpublished Navy opinion has fertile constitutional grounds for appeal, that's for sure.
But, the more compelling question is, why was this a pro se, IFP pleading/petition? Where is Appellate Defense Counsel, when one most needs one????
The 30-year-grant policy is important news. Why 30 and not, say, 10? Any information on when this policy went into effect? Does it tally with actual experience?
I just read the Swanson NMCCA opinion and I agree with dew process: why didn't the appellate defense counsel file the petition on behalf of the client? Is it a staffing issue, is the appellate defense shop overworked, or is there a problem with a commitment to the client? I don't see how 10 issues are good enough for NMCCA and precisely zero issues are good enough for the Supremes. The implicit proposition here is that there is a sliding scale of appellate worthiness. There is probably a sliding scale, but it seems to me that counsel tend to overestimate the slope of its curve.
Anon,
After reading the appellate issues at NMCCA, it seems to me that this is a good example of hiding true appellate issues in a forest of poor issues. I suspect that few judges commit 14 reversible errors in a single trial. The fact that the appellate attorney claims a laundry list of errors has little bearing on whether a case is cert-worthy.
Apparently, though, something in this case is cert-worthy. My money is that the court might be concerned with the admission of his post-offense comments, which apparently came in as some sort of 404(b) evidence. Either that or the admissibility of the accused's hearsay statements to the one-year-old child.
Swanson has only been "docketed" - the Supremes have not granted cert.
Stay tuned . . .
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