Thursday, June 21, 2007

Father's Day was last Sunday, but there is no paternalism in Jameson

In United States v. Jameson, __ M.J. ___, No. 06-0881/MC (C.A.A.F. June 21, 2007), a 3-2 majority of CAAF upholds a trial judge's ruling that the defense counsel forfeited the accused's challenge to a consent blood draw by raising the issue for the first time during trial on the merits rather than pretrial, as required by Military Rule of Evidence 311(d)(2)(A).

All five judges agreed that the accused would have lost his rather ironic argument that he was too drunk to provide consent to the seizure that proved he was drunk. But Judge Ryan, joined by Judges Erdmann and Stucky, upheld the military judge's ruling that the defense counsel had not shown good cause to excuse his failure to raise the issue pretrial. Writing separately, Chief Judge Effron and Judge Baker each reserved judgment on that issue, preferring to resolve it on lack of prejudice grounds.

One opinion does not a trend make, but we should be on the lookout for signs of whether the current CAAF lineup will be less paternalistic and more willing to visit the sins of the lawyer on the accused than previous CAAF/CMA lineups have been.


Jason Grover said...

Interesting to note one of Judge Baker's great lines this term:

"It is clear that defense counsel was flirting with a potential ineffective assistance claim."

There was much discussion recently on reading into Judge Baker's words. I, for one, submit that Judge Baker is a great writer and a quick wit. His opinions are generally easy to read and often have a great line or two.

Since we have given much thought to Judge Baker recently, I throw out on more point, given to me by one in the know, that if appearing before CAAF, Judge Baker loves the list. Be ready with the "top three reasons why CAAF should decide in your favor." Or 17 depending on his mood that morning. Anybody who has been listening to CAAF arguments online or attending them this term should be able to confirm that.

Anonymous said...

Some other standard Baker lines:

Where does it say that in the record? Give me the page number.

Can you provide us with some "granularity" on that point?

Anonymous said...

With all due respect to Judge Baker, the trial counsel in this case did far more than flirt with ineffective assistance of counsel. He married it, they have two kids, and they live in Newark.

Although not reflected in the opinion, the government conceded that trial defense counsel's performance was deficient at trial. The only real issue in this case was prejudice. During cross-examination, the military policeman admitted that Jameson was lying on an x-ray table with a suspected broken jaw when he approached him with the rights advisement form. He was "pretty beat up from the wreck," and so he held it over the x-ray table so Jameson could sign it. And the military policeman read a local North Carolina rights advisement form to Jameson on an x-ray table in a military hospital for a car accident that happened on a military base. The form stated that Jameson's license would be taken from him by the state of North Carolina if he did not consent to the test. Of course, because the trial defense counsel raised the issue in the middle of trial, he did not produce independent evidence of Jameson's broken jaw or the medication he was receiving. Still he must have had a good faith basis to ask such questions on cross.

But the Court held, "there is no evidence in the record that any of the factors marshaled by Appellant's counsel in fact affected Appellant's understanding of his rights or his consent to the blood draw." Right.

Let me make sure that I have this right. A trial attorney who is ineffective must do an effective job of establishing the prejudice of his ineffectiveness or he will not later be found ineffective. In this case, trial defense counsel was wholly ineffective at establishing the prejudice from his own ineffectiveness and Jameson loses. Stunning.

The important thing about this case was noted by the CAAFlog. The paternalistic CAAF of yesteryear may be gone forever. With respect to the first issue, the Court seemed to abandon the Court's previous admonishment in Coffin that "good cause" be "liberally construed." The liberal construction mandate was not mentioned once. Instead, the Court cited to several federal circuit court decisions involving good cause. There may be only one liberal grant mandate remaining in military justice-for now.

One final note, I know the Marine judge advocate who defended Jameson at trial to be one of the finest trial attorneys in the Marine Corps. As I know all too well, those who actually enter the ring occasionally make mistakes.