Rodriguez recon irony #2

In the reply to the Government's opposition to the recon petition in Rodriguez, Rodriguez's counsel dismisses as mere "boilerplate" NMCCA's stamp on a copy of the opinion indicating that it was served on appellate defense counsel.

Black's Law Dictionary provides us this helpful description of the legal term, "boilerplate": "Ready-made or all-purpose language that will fit in a variety of documents. The term, first recorded in 1893, may be referred to steel plates affixed to boilers. But the modern sense comes from the use of the term to refer to copy set on printing plates (or molds to make the plates) and distributed in that form to newspapers. The copy could not be edited.)" Black's Law Dictionary 185 (8th ed. 2004).

Here's the irony: NMCCA's decision in the case dismissed the appellate defense counsel's claims that the cause of the portion of the post-trial delay attributable to the defense was an overloaded docket as, say it with me, mere "boilerplate." United States v. Rodriguez, No. NMCCA 9900997 (N-M. Ct. Crim. App. July 17, 2007). The opinion on of the court observed: "The appellant, without reference to any evidence, claims that the reason for the 602 day delay for filing his initial brief was the appellate defense counsels' caseloads were too heavy for them to work on the appellant's case in a timely fashion, thus causing them to file fourteen enlargements of time." The opinion rejected this claim, noting that "the appellant's claim is based upon his appellate defense counsels' assertions contained in their 'boilerplate' motions for enlargement of time, and not upon any sworn affidavits or other sources of evidence." Id., slip op. at 19 n.9. Senior Judge Vollenweider, joined by Judge Stolasz, authored a concurring opinion that noted, "where, as here, the record contains only boilerplate unsworn statements from appellate defense counsel that other caseload commitments prevent the timely filing of a brief in a particular case, the record does not contain facts from which to draw a rational determination that the Government failed in its duty." Id., slip op. at 24 (Vollenweider, S.J., concurring).

In the Rodriguez recon reply, it is now the defense seeking to reject NMCCA's stamped verbiage as mere "boilerplate." And GySgt Rodriguez's ability to obtain a ruling from CAAF on the originally granted issue of "WHETHER THE MILITARY JUDGE IMPROPERLY SHIFTED THE BURDEN OF PROOF TO APPELLANT IN ASKING APPELLANT TO EXPLAIN THE VICTIM'S MOTIVES IN ACCUSING HIM OF SEXUAL ABUSE," 66 M.J. 488, now depends on CAAF rejecting NMCCA's "boilerplate" just as NMCCA rejected the defense's "boilerplate."