Monday, June 01, 2009

Rodriguez cert petition

I've posted the Rodriguez cert petition here. The QP is: "Whether the Court of Appeals for the Armed Forces misapplied this Court's jurisdictional decision in Bowles v. Russell, 551 U.S. 205 (2007), thereby denying Petitioner servicemember his statutory right to appeal his court-martial conviction." The cert petition doesn't discuss the interesting jurisdictional issue that the case presents; rather, it simply asserts that "[t]he jurisdiction of this Court is invoked under 28 U.S.C. § 1259(3)." Cert petition at 1.


Anonymous said...

Note the petition filed in the Loving Foia case on the 28th?

Anonymous said...

Although I doubt that ruling that the time bar is "jurisdictional" equals "granting relief," I'm not convinced that this question has ever mattered at SCOTUS beyond the CAAFLOG commentary pages.

CAAF's decision was certainly not required by that case - there are plenty of other courts that have held that equitable tolling survives - but I think they were within their permissible range of interpretation. Why not bring it up at the Congressional hearings and restore equitable tolling under Equal Justice for Our Military 2009?

Socrates said...

Well, CAAF was certainly within the permissible range of interpretation. Especially considering that "range" extends from correct, all the way over to incorrect.

That was a bit of jab, because I catch your point: this was a close-call, an obtuse (almost "chicken and egg") issue, and reasonable minds can differ.

This issue should be brought up at the Congressional hearings to restore equitable tolling under Equal Justice for Our Military Act 2009.

But, as to Rodriquez, neither he nor his attorneys should be so patient.

Cloudesley Shovell said...

I am surely missing something, but I cannot help but wonder why 60 days is not enough to file a boilerplate petition to CAAF?

Why not just set up an office tracker to automatically flag cases for the filing of a petition with CAAF well before the 60-day deadline? One can always withdraw the petition later if the client does not want to pursue further appeals.

The law is full of mandatory, short-duration filing deadlines. What is so special about military appellate practice that requires equitable tolling, esp. when it is so easy to file a petition?

I'm not trying to be sarcastic, I'm just assuming there's a factor about military practice I'm missing that makes the 60-day requirement so onerous. Thanks for any insight other commenters may offer.

Anonymous said...

I agree with Cloudsey that it is not so hard to meet the 60 day deadline. Anyone who does not comply post Rodriguez is asking for heartache.

BUT- The problem is that CAAF changed the rules and applied the new rule to cases that were late, but which then current practice would have allowed.

Sure, appellate counsel were spoiled by years and years of CAAF allowing sloppy time keeping, but to change the rules then to go back and throw out cases that were fine under the rules as they then exisited smacks of unreasonableness.
Retroactivity is always a B*tch.

Anonymous said...

Seriously, if Rodriguez is going to be applied retroactively, then they ought to do the same for pro-defense precedents as well.

Socrates said...


I think the issue is more complicated than it seems at first blush. 60 days is not the problem. There is a real issue as to whether an appellate attorney can file on his/her client's behalf without a clear, affirmative communication from the client permitting the attorney to do so. The argument that the attorney is acting in the best interest of the client, even without permission, may not fly. Just like a doctor who acts in the best interest of the patient without permission is committing an assault. Under professional responsibility rules, all major strategic decisions (not tactical ones) - such as filing an appeal - MUST be made by the client. So the problem is communication with the clients. Clients move and get on with their lives. The solution would be a better post-trial rights form - which sets as the "default" position of the client: APPEAL! (Almost like a living will - but with an "appeal clause") Good trial defense attorneys will get MULTIPLE addresses for the client, including family members. Since communication with clients in the appellate system has been a problem for years, the appellate shops should have taken this for action years ago: putting out some guidance for trial defense shops on how to improve the post-trial rights form.

Peter Wright said...

Compared to the civilian judicial system this issue is one of quirkest differences in the MJ system. It's hard to think of a situation in either the civil or criminal judicial system where a lawyer would file an action on his own without the explicit consent and direction of the client. In the civil system if the client doesn't pay, no lawyer would left a finger for them.

In the criminal justice system the same is true with private attorneys. And the public defender isn't going to file even the first appeal without the defendant's direction to do so. (Heck, if the Defendant has some financial assets and doesn't qualify for the Public Defender and doesn't hire their own private atty, no matter how meritorious the appeal, it won't be filed.)

It's really odd when you look at it from the civilian perspective to even consider filing a second level of appeal if you haven't had any contact with client. And considering that in the military the appeal will keep the client on appellate leave and still subject to the UCMJ it could almost be malpractice to file an appeal without their direction. (If the appeal was successful, the client potentially might be upset to be dragged back on active duty for a retrial).

Judicial resources are too expensive to waste on cases where the client does care enough to keep in contact with their lawyer. Instead of the standard form that the accused fills out at their court martial requesting appellate representation, the accused should just be given the contact information to the appellate defense office and told to call if they have issues beyond a merits review. (Of course trial defense will also talk to appellate defense about any issues that they think should be brought up on appeal if there are any).

The accused who feel they were unjustly treated will burn up the phone lines to their appellate atty. (i.e. individuals like Cossio). Those that feel they got a fair shake in the system won't bother.

The point is why should judicial (and taxpayer money) be used to review issues when the accused is not complaining of an injury.

Socrates said...

It is a bridge too far for me when advocates use the civilian model of justice as a reference point to contrast military justice with when it suits their argument, but then shift that standard and make the "military is different" argument when this line fits their needs.

Their are unique reasons to be more proactive in military appellate defense. First, the military orders people to move geographically. And then it often delays their appeal for extensive periods. Thus the military creates at least 50% of the contact problem. Second, the military population is younger and less educated - and tried for crimes their civilian companions would not be convicted of. Peter Wright's reliance on the conscience and intellect of E-3s is misplaced, to say the least. It is simply unprofessional to say that a client must instruct the lawyer about the errors at his trial...or the lawyer should work to the same level of motivation as the client. This falls under the "good enough for government work" mentality. Third, the "judicial resources" argument is a canard in the military. The military makes a specific decision to stand-up a court to try someone, often an unwise decision, that gets credited to the commander's discretion. It may or may not be a good choice to try a servicemember, or to pile-on charges (like the ubiquitous "false official statement"), but these choices cannot be placed in the preserving "scarce judicial resources" column. Its also bad accounting: just like military planes must fly for mandatory flight hours, and it is erroneous to attribute all of those hours to unique operations as a cost, so too JAGs see similar cases, see common errors, and can point them out in a ratio of work-time to clients that is not linear, but tends to regress with the number of clients.

John O'Connor said...

The military justice system is unusual in that it is a criminal justice system where the client is assigned an appellate lawyer without any action on his part and might be totally ambivalent about the appellate progress of his case.

A better system would weed out the ambivalent clients by allowing them to waive appellate review as part of a PTA, thus leaving for appellate review those most likely to be interested in their appeal.

Peter Wright said...

I think it can be very productive to compare and contrast the UCMJ with the civilian jurisdictions. Attorneys do practice in both jurisdictions and all jurisdictions are under the constitution. It’s not like I’m comparing it to French military justice system.

My basic point is that Justice under the UCMJ would not be diminished if appellate defense only pursued appeals when the client authorized it. If the accused isn’t complaining of an injustice there is no need to spend the resources on their behalf.

1) I must respectfully disagree that a young enlisted member is not intelligent enough to consult with defense counsel. After a court is over the trial defense can review the case with the client and discuss any issues that merit an appeal and the trial defense can send their opinion to appellant defense. I know you don’t like comparisons to the civilian system, but the lowliest E-1 is more intelligent than the average civilian defendant. The recruitment process weeds out the mentally ill, low IQ, non-high school graduates, obvious hard-core druggies, diabolically evil serial criminals, and the just plain eccentric people who usually make up the bulk of criminal defendants.

2) The geographic dispersion argument would definitely carry more weight a few decades ago, but now with the internet, cheap long distance calls, and very speedy mail system there is no reason someone anywhere in the world can’t communicate with their attorney in D.C. Especially considering that most accused on appellant leave have been shipped back to the US or are still in a military confinement facility.

3) I strongly disagree with the “Good enough for government work” line of argument. Most attorneys work hard and do their best. It’s more of question of how much taxpayer money should be allocated to the system. Its great that the military and federal government never have to balance the budget and can spend so much. But the states have to balance their budgets have to make hard budget decisions that the feds rarely have to make. It would be prudent to at least consider the costs of it all and this in my opinion would be the low hanging fruit. (Eliminating make work like Grostefon motions is another one).

With that said, if I was ever accused of a crime-guilty or innocent- I would definitely want to be tried in the military.

(Finally, False Official Statements is not pile on charge. It is a legitimate crime.)

Socrates said...


I agree with your bottom-line, that I would rather be tried in the military justice system. I participate in CAAFlog discussions, as I am sure you now do, to ultimately improve the system - not to disparage it.

So lets sharpen our swords and get to it...

I do not necessarily dislike comparisons to the civilian justice system; I object to the inconsistency of using civilian justice as a beacon of law practice when it suits one argument - but then dismissing the civilian justice system and arguing that the "military is different" when that argument fits the bill. I reject the inconsistency and how advocates often do not even realize that they move back-and-forth.

1) You state that after trial, a convicted servicemember can review the case for appellate issues with his defense attorney. This would not be common. The trial defense attorney will have another case to investigate and try, would not have the benefit of a record of trial, will not spot all the issues, and cannot identify potential ineffectiveness. We also have a different concept of what intelligence practically means. Is not the reason that lawyers pass the bar - and then specialize in an area of law through practice - separate even an "intelligent" client from a professional? You make it seem like spotting legal issues to appeal consists of things that really "bother" the convicted servicemember. Sorry, that is not the criterion for an appellate issue. Under your line of argument, hell, the accused doesn't even need a defense attorney: his high ASVABs and HS diploma qualify him to represent himself.

2) The geographical dispersion argument still holds because it is the GOVERNMENT that is tasked with sending the court's decision to the convicted, by MAIL. (Usually 2-3 years later) Your argument convenienty assumes its very premise: that the burden of acting lies with the convicted servicemember. I am disputing that premise.

Plus, lets test the disturbing undertone to your argument that a legal issue is only meritorious if the victim recognizes it and complains of it. If a women is beaten or raped, but does not want to pursue a formal report, should the system just shrug its collective shoulders? No. Because justice is a collective issue, not just an issue involving an individual.

3) You essentially concede the argument here by admitting that the federal system (and the military), lacking resource contraints, can prosecute at will. Exactly. And you should not do so much of it. So do not turn around and only apply the "scarce judicial resources" objection to the defense bar.

Eliminating Grostefon issues is a superficial reform, would cause ethical prolems for the defense (which makes me suspect you have not practiced appellate defense) and essentially undermines what you stated above - that the convicted servicemember is intelligent and knows what isues to complain about to his defense attorney. They don't.

("False Official Statement" is one of the most abused and trumped-up charges in today's military justice most certaintly is a "pile on" charge. The crime has strayed far from its legitimate roots - and if you want to use your coveted civilian example, how often is this charged in the civilian world?)

Peter Wright said...

Interesting debate…Last post from me except for the next continuation post.

1) For the first point, I think you overly exaggerated my position to make it look ridiculous. I dare submit that all military clients have the intelligence to communicate with their ADC and assist in their defense. I don’t think it would be overly burdensome for the trial defense to discuss appellant issues with the client and give them an idea of potential issues. Clients are usually intelligent enough to understand their ADC’s professional advice on the meritorious issues that could be appealed and what the chances of success will be. I certainly wasn’t advocating that the accused him/herself be the one to identify the issues. The ADC and Appellant attorney need to explain the issues to the accused and let the accused decide whether to purse the appeal or not. And unless trial defense was sleeping during the court he/she should have an idea of potential appellant issues even without the ROT.

(Yes, I know with free appellant defense and free medical care during the appeal almost all accused will want to pursue an appeal. Though aren’t most case just submitted on their merits anyway?)

2) I agree that like any legal professional the appellant defense office has the burden of sending court decisions to the client, but I believe that the client has the duty to keep their lawyer apprised of their current contact information. Generally, in the civilian world if you lose contact with your client you need to withdraw from the case.

The analogy to the domestic abuse victim is, to put it mildly, way over the top and I don’t think I need to response directly to it …The client is the boss of the case, the ADC and appellant attorney need to give the client the professional advice on the issues they see and it is the client to decide whether to pursue an appeal. And at minimum they should be required to maintain contact with their lawyer. Even if there is a really great appellant issue, appellant defense isn’t just free to pursue it to because it’s a great issue. So if the client was the domestic violence victim, in your analogy, and they told their lawyer to drop the appeal, the lawyer would be ethically bound to drop it. (Which is unlike your analogy because it is the government who is prosecuting the domestic violence case.) You state that “justice is a collective issue, not just an issue involving an individual,” but the defense attorney’s job is NOT the pursuit of justice it is to ethically represent that individual client. The pursuit of justice, as you know, is the goal of us guys/gals who wear the “white hats.”

Peter Wright said...

As for Grostefon, I don’t see much of an ethical issue if the Grostefon case was reversed. At trial level it is common for an inmate to handwrite an entrapment motion or some other crazy complaint and mail it to the judge. The judge just sends a one page reply stating that since the defendant is represented by counsel the judge will not consider the motion unless adopted by counsel. My state bar has actual ethical rules against filing frivolous motions.

I’ll concede that sodomy is not a real crime anymore (not that I ever do it even if its not criminal anymore), but False Official Statement is a real crime. (I must point out that you seem very defense biased to be downplaying the importance of being truthful. I realize this is defense hack blog, but sometimes it loses creditability because commentators take such extreme views like that. For the record I was an ADC.)

Finally, to try to bring this discussion back to the posted topic of meeting deadlines with CAAF. I realize that the form the accused signs after the court-martial requesting appellant defense can be used to justify the full representation of the accused’s case. I just argue that when the time comes to consider an appeal to CAAF that the accused should have to authorize it. The defense shouldn’t just file a petition automatically.

If the client has no interest in the case there really is no reason to continue to go forward. (Isn’t there some issue of the Air Force Court requiring client consent before the defense can request a continuance and isn’t the defense opposing this because it violates atty-client privilege?)

Dwight Sullivan said...

Here's a practice point: in LEXIS's "People Finder" database, you can do a search by SSN. I've had tremendous success tracking down clients through this means.

Dwight Sullivan said...

I thank goodness for United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). It's an outstanding opinion and very good for the military justice system.

Under Grostefon, an eppellate defense counsel ethically may (in fact, must) raise with the CCA and CAAF any issue that the client wants raised -- no matter how frivolous. A lot of an appellate defense counsel's time is spent trying to talk clients out of raising Grostefon issues that are antithetical to their legal interest. A good example is when a client wants to challenge his guilty plea by arguing that he perjured himself on the record. There's no way such a claim will prove successful, and it theoretically opens up the client to prosecution. Sometimes appellate defense counsel are successful in talking the client down from the ledge; sometimes not.

But let's consider for a moment what the system would be like if Grostefon didn't exist. Then we would likely be governed by Anders v. California, 386 U.S. 738 (1967). Under Anders, an appellate defense counsel who sees no non-frivolous issues in a case that the client nevertheless wants to appeal essentially must write a brief to the appellate court explaining WHY there aren't any meritorious issues. In other words, the lawyer must file a brief directly antithetical to the client's interests.

Such a requirement would obviously produce very bad optics for the military justice system. In the eyes of the client -- and perhaps the eyes of the public -- it would appear that the appellate defense counsel is putting his or her interests as a military officer ahead of the client's interest.

For purposes of our system, Grostefon is a far superior procedure. The appellant will know that any argument he or she insists on raising was at least looked at by a court, including by a civilian court of the appellant exercises his or her right to petition CAAF.

So everyone please, please keep your paws off Grostefon.

Socrates said...


You make good points. We actually are having a heated agreement on our bottom-line conclusion on the topic at hand: filing deadlines.

I agree with you that an appellate defense lawyer cannot, under professional responsibility rules, just file an "automatic appeal" on behalf of his/her client...which was the feaux-solution offered by some commentators as a response to Rodriquez. Just sending a petition to CAAF while waiting to contact the client sounds easy, but its a discretionary level of appeal, hence unpermitted.

I was indeed polemical about your position vis-a-vis client intelligence and motivation. I stick to my main theme, however, that a professional does not match the level of interest or motivation with that of the client. The professional has an independent work ethic. (Can you imagine the mental health professional answering the suicide hot-line that did not hold to this view of professionalism?) Spotting issues and putting forth the best possible advocacy of the client's interests.

When I think I am dealing with an immature "punk" client, as a professional, I try to imagine the better person he/she will be 10-20 years from now...and to look at my appellate work retroactively. Whatever works. But it is rank negligence, and I do not think you have successfully attacked the heart of this argument, for the appellate defense attorney to A) not make all good faith attempts to track down the client - beyond frivolous form letters - and rely on the lame excuse: "it was the client's job to keep his address and POC information updated. He didn't. So he's out of luck." Many appellate defense attorneys take this convenient position - when 30 minutes of research would uncover the client's - or parents' - address. B) Spotting potential error and putting forward the best possible argument that the error was prejudicial. Close calls go to the client.

I think you misconstrued my point about collective justice. You are right that the defense attorney should only care about the interests of his/her client (which feeds my point about being zealous in tracking the client down - even through the client's family - and not relying on form letters). What I was getting at with this argument is, lets say that the client's fourth amendment rights were violated. But the client did not know it and was not particularly bothered by it. As long as the client has authorized the appeal (the strategic decision), the specific issues to raise (tactical decisions) belong to the attorney. The defense attorney should raise the search and seizure violation whether or not his client knows or cares about the intricacies of the fourth amendment. And such arguments are inevitably wedded to concepts of collective justice. There is an invisible reservoir of policy arguments, social utility and collective justice that tend to support such appellate arguments - and a persuasive brief relies on these "social" arguments - whether explicitly or implicitly - and they extend way beyond the client's narrow interests.

You have exaggerated my point on false official statement. It is indeed a legitimate crime and has a necessary application. But it has evolved into the prosecutor's version of a pile-on charge. Have you not seen some of the off-hand, peripheral, frivolous, non-investigatory utterances - sometimes in tension with self-incrimination principles of the civilian world - that servicemembers are accused of?

Peter Wright said...

I'm really not too much in a disagreement with your points as the system currently works. I guess my main arguments are for changes to the system. A few weeks ago the working points for the Cox commision was posted and I found myself agreeing with a lot of the potential reforms. The military justice system is too paternalistic for my tastes and I think it could benefit alot by importing some civillian practices.

(This may sound petty, but one thing I really dislike is the free medical care the accused and his family get while their even simple case is on appeal for years. I was honorable discharged and took some time off to travel and had to pay over $300 a month for COBRA coverage and I was just a single guy!)

Finally, I agree the False Official charge can be abused. I never personally saw it abused, but in the 90's when they had those high profile frat cases like Kelly Flynn the government would charge the FO so they could say the case wasn't just about sex.

I take that back, I did have two officer clients who got charged with trumped up Obstruction of Justice specs.

Anonymous said...

Why don't you two get a room?

Anonymous said...

I seem to recall an oral argument before CAAF some years ago involving a case of a Navy Sailor whose intentional hazarding of a vessel offense was referred to a SPCM w/o the consent of the GCMCA per RCM 201. I believe the Sailor plead to negligent hazarding (a non-capital offense), but ADC’s requested relief was to set aside the findings and sentence due to the improper referral. I belief the following, or words to this effect were said by one of the CAAF judges to ADC: “If we agree with you and grant the relief requested, doesn’t that expose your client to a referral to a GCM? Is that what your client wants?”

The point has nothing to do with that case and its result, but that an ADC acts at rtheir own peril when representing a client whose desires are unknown.

Take a hypothetical of LCpl Sticky Hands. Her unit is set to deploy to Afghanistan for 15 months. She is the mother of two. She decides that the only way out of the deployment is to go on a little 5-finger discount shopping spree in the barracks while her unit is at the range (she had a dental appointment which explains her absence from the range). The USMC dutifully charges her at a SPCM and her savvy TDC informs her that a BCD is a given, so rather than go the BCD striker route and expose herself to extra brig time, she should come in with some sob story about stress from work, being a mother, trying to make ends meet, and the pending deployment, which all contributed to this horrible mistake (thereby removing anything in the record that would suggest to the ADC that she actually wants nothing more to do with the USMC). MJ gives her the BCD, 90 days, RIR to E-1 and she avoids the Stan.

6 months later ADC, without any contact with appellant submits an appeal which results in a total set aside. Marine is ordered to Pendleton and the command indicates she is being sent to Stan where the unit will deal with the outstanding misconduct at office hours.

Is this a problem for ADC?