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Thursday, May 21, 2009
MUST READING for military appellate defense counsel [REVISED]
Here's a link to an important order that CAAF issued yesterday. United States v. Angell, __ M.J. ___, No. 09-0098/AR (C.A.A.F. May 20, 2009). CAAF indicates that it may initiate disciplinary proceedings against appellate defense counsel who blow their clients' CAAF petition deadlines. In concurring footnotes, Chief Judge Effron and Judge Baker urge the Judge Advocates General to consider certifying cases to CAAF where an appellate defense counsel blows the petition filing deadline.
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11 comments:
I admit my experience in civilian criminal courts is limited to federal practice as a prosecutor but I've never seen a court refer a counsel to a state bar for missing a deadline. Granted, civilian defendants have other recourses such as suing the counsel. It seems CAAF may be abandoning their neutral role by referring counsel to state bars. Shouldn't the JAGs be doing that? And does CAAF want to get into the business of policing counsel? There are lots of infraction that may violate bar rules or ethics. Seems like a few on CAAF are pissed that they must now adhere to the filing deadlines.
However, if CAAF is saying JAGs can certify cases as a safety valve that infringes on JAGs neutral decision to refer cases. Just some musings (oh, what happens if the JAG misses a deadline?)
A couple of thoughts:
1. While I recognize it's apples-and-oranges, this is all consistent with what the court has been doing to the government in Moreno and its progeny. Basically trying to make the system more efficient and professional.
2. I don't get the idea in the concurrences that the JAG ought to certify over these late-filed cases. Yeah, I guess that can eliminate an IAC claim, but such a certification would REQUIRE that CAAF review the cases, when we know that most petitions for review are denied. Ironically, an accused would want to hope his counsel blows the deadline if the JAG will just certify over cases when that happens.
3. I didn't see a threat to contact state bar associations. I did see a threat to maybe conduct further inquiry when counsel misses jurisdictional deadlines.
4. Judge Baker's concurrence had a sour grapes feel to it re Rodriguez.
5. I wish there was a way to lighten the caseload in appellate government without throwing more resources at he problem. But how? Hmmm . . . .
The posted order has the counsel's name at the bottom. Perhaps CAAFlog should consider uploading a version of the order with the name redacted.
Certification is an interesting way around the Rodriguez nonsense. I'm all for it when good cause is shown - the prosecutor is a minister of justice and all that.
Of course, Effron & Baker are a bit naive if they think any resulting case would get three votes on the merits. I'd be pissed if you found a creative way around my Rodriguez mousetrap.
So the real lesson here is that appellate defense counsel should never, ever admit in a late filing that the reason for the late filing was counsel's fault. May have worked pre-Rodriguez. Now, that will buy you a ticket to a disciplinary proceeding. Use the infantry officer's philosophy - cover and concealment. Or the supply's officer's motto - "lie, lie, lie, and deny."
0704 Anon,
Actually the practical effect of all this will probably be to increase the number of CAAF petitions filed. I dare say that most appellate defense counsel will now file a petition in every case as soon as the CCA decides it, since counsel can later move to withdraw the petition if the client doesn't want to go, but won't be able to revive the case more than 60 days after constructive service.
You're right. But soon they will have to file a petition AND A SUPPLEMENT. No rest for the weary.
On May 18, 2009, the Australian Defence Force Discipline Appeal Tribunal granted leave to file a very late Notice of Appeal in Carmichael v. Chief of Navy, [2009] ADFDAT 3. There is a link to the decision on www.nimj.org under News.
Flood gates are officially open.
The real problem is that they are telling counsel that "even though we let you guys do this for years, our retroactive application of rodriguez make everything you thought was fine, now negligent and ineffective."
Now they are theatening to call us on it too?
Amen 1936. We should be alowed to continu to miss deadlynes and file pleadins things late, and with many erors in them. Tat is da professionallyysm stanturds we needz to get our credibility and become equivalens to Art 3 court thinsgs.
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