Saturday, January 17, 2009

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."


Anonymous said...

That language from NMCCA regarding "unsworn statements" from counsel troubles me. Are they implying that counsel are not being forthright with the court? That's a serious accusation where I'm from...

Anonymous said...

That type of language and corresponding ethical implication was a standard part of that particular judge's and NMCCA's lexicon back then.

In fact, during a couple month span during that timeframe, NMCCA judges had managed to separately accuse every single lawyer at the Navy-Marine Corps appellate defense division with unethical behavior.

It finally took the Navy JAG stepping in to end the insanity and have some professionalism restored to the Court.

One of the amusing fallouts from this era was the United States v Harris drama, where appellate defense got a measure of payback by embarassing NMCCA and one particular judge in front of CAAF. See previous CAAFlog discussion here:

John O'Connor said...

So is the Navy JAG "stepping in" with respect to what the NMCCA does good or bad? I could imagine some viewing that as command influence.

Anonymous said...

The Navy JAG did not "step in.". That is just a misperception of a junior counsel.

Anonymous said...

Anon 2053:

How do you know the JAG didn't step in, and how do you know Anon 1938 is a junior counsel?

Dew_Process said...

More ANON snarkiness.....

Just the facts folks, just the facts!

And Anon 1748, I agree with your interpretation that the NMCCA sure seemed to be implying a lack of candor. But, that's just stupid, because when you sign a pleading as counsel of record, you are certifying that it is accurate. If the court feels otherwise, appoint a Master and investigate - that simple.

Anonymous said...

Because if the JAG stepped in then everyone in the appellate world would know and there would be motions for reconsideration based upn the JAG having to go "correct" the Court and then some sort of allegation of JAG interfering with the Court.

I grant you that at that time there were several judges on NMCCA that were acerbic and downright rude. I also grant you the fact that you can see that inaappropriate language of judges in their opinions and their demenor in conferences. However, those judges moved on in the normal course of PCS moves and release for reserve orders.

And how do I know they are junior counsel? I've heard them say it.

And, by the way, the Appellate Defense Counsel in the Code 45 shop during this period of time (as well as today) held their own agains very senior (though often times less experienced) judges. There was no need for the JAG to step in.

Anonymous said...

I doubt that everyone in the appellate world would know if the JAG told the chief NMCCA judge to have a talk with the other judges about the tone of their decisions.

Anonymous said...

Really? If they thought that wouldn't it be in their best interest to do some investigation? To ask some questions? to make a motion to reconsider based upon some influence?

If one person on the government or defense side or within the Criminal Law AJAG AOR knew that the JAG stepped in don't you think that it would have come to light? If the 0-6 Director of Code 45 had any hint that the JAG, himself, at that time and 0-8, stepped in and tried to direct the Chief Judge of NMCCA to act in a certain way that there would not be some fall out?

Lets punt it back to the original post, what evidence is there that the JAG stepped in?

Anonymous said...

There is a substantial difference between style and substance. It is one thing for the JAG to advise judges who are his subordinates to maintain their judicial temperment, which essentially meant omitting the gratuitous nasty footnotes and hairtrigger accusations of unethical conduct. This kind of directive would have had no substantive effect on decisions and no party would have a vested interest in complaining. Why would an ADC complain and essentially say, "my client was prejudiced because you let the JAG tell you to omit the nasty footnote accusing me of misstating the facts." (The big complaint by the judges back then was this canard that there was only one "objective" set of facts and any attempt to shape them by ADC was met with violent resistance. The joke was, of course, that judicial decisions, too, would selectively use and highlight facts.) If the Air Force TJAG can have sex with subordinates for years without an official peep, why can't a Navy JAG make one discrete comment about a matter entirely and properly within his purview to the chief judge?

Anonymous said...

The tenor of the judges on NMCCA is not within the purview of any TJAG. Can TJAG say, "I don't like your language, change it?" If so he can start swapping judges out for results oriented panles.

And, that is a good analogy, the AF TJAG having sex with a subordinate and the Navy TJAG telling the Chief Judge to change the tennor of his tone.

The best proof that the TJAG did not step in to influence the Court in any way was that it did not change! All of the concerns of counsel regarding the language and actions of the Court stayed around for about 18 months!

John O'Connor said...

I think it is a sort of silly argument to say that JAG direct influence on CCA opinions is okay if it's for the good of accuseds (so they shouldn't mind) or if it deals with tome and not substance. Both of those things involve notoriously difficult lines to draw. A JAG would be foolish to think the defense bar wouldn't complain about UCI if the JAG thought what he was doing was "for the good of the accuseds" or dealt with style and not substance.

Anonymous said...

"The tenor of the judges on NMCCA is not within the purview of any TJAG."

Wrong. Yes it is. The CCA is an Article I court, not an independent judiciary. Don't confuse propriety with legality. (And I don't even think its improper for the JAG to supervise his subordinates; Judicial temperment is an entirely proper area of the JAG's purview.)

"Can TJAG say, 'I don't like your language, change it?' "

Yes, he can. Cite me authority that says he can't. But more likely, he can urge & pursuade.

"If so he can start swapping judges out for results oriented panles."

Yes, he COULD. It may be a political, professional and ethical problem, but not contrary to regulation or law. That is why some smart litigators demand that military appellate judges serve for fixed avoid the "administrative impeachment" of judges.

The sex analogy still holds. The analogy is not about a substantive legal matter, but it goes to the issue of an individual's or organization's capacity to supress information.

"The best proof that the TJAG did not step in to influence the Court in any way was that it did not change!"

Wrong again. After a heated period around 2nd Quarter 2007, the tenor of decisions went from a 9 on the negativity scale to about a 5. Nobody is claiming that NMCCA decisions all of a sudden contained glowing praises for ADC. The issue was over-the-top written criticisms placed in decisions.

Even though I take issue with your underlying assumption that such a discussion would be improper, I must accept your bottom-line point as reasonable. I do not have a smoking-gun tape of the JAG talking to to chief judge.

There was pointed talk, a suggested course of action, murmuring, and a then a change. So the rumor has some basis, but the buzz may have gotten back to the court via other leadership mechanisms.

Anonymous said...


I think it is "sort of silly" that the JAG did not properly man the appellate defense divisions for about 10 years.

And maybe an ADC would raise an objection if he or she knew of the contact. But the reverse argument that nobody objected so the conversation must not have happened represents a logical fallacy.

My argument is not silly at all. Lets say as an ADC I discover that the JAG had a conversation with the chief judge. Lets assume, for the sake of argument, that I have brass balls and ask the JAG for an affidavit of that coversation. He then provides it. The JAG's affidavit says he told the chief judge that he was concerned about the overly negative tone in decisions towards ADCs.

So, I'm the ADC. What is my motion? What is the prejudice to my client?