Friday, July 25, 2008

New pro se IFP military cert petition

The Supremes have docketed a pro se IFP cert petition in the case of Baker v. United States, No. 08-5432. CAAF summarily affirmed the case on 12 May. United States v. Baker, __ M.J. ___, No. 02-0334/AR (C.A.A.F. May 12, 2008) (summary disposition). CAAF had previously granted review in the case and set aside ACCA's decision for further consideration of an IAC issue. United States v. Baker, 58 M.J. 380 (C.A.A.F. 2003). Following two DuBay hearings, ACCA rejected the IAC claim in a published decision that we discussed here. United States v. Baker, 65 M.J. 691 (A.C.C.A. 2007). As usually occurs when a servicemember petitions CAAF following an initial grant and remand, CAAF granted Staff Sergeant Baker's petition and summarily affirmed. Now Staff Sergeant Baker is asking the Supreme Court to review the results of his special court-martial that was tried a decade ago.


Marcus Fulton said...

I wonder why this is an IFP petition. It wasn't that long ago that CAAF ordered appellate defense counsel to remain on cases until the time to file cert ran out. Did counsel conclude the issue in this case was frivolous? Was it filed under Grostefon in the first instance? It would appear not, since ACCA noted other issues filed under Grostefon at the end of the opinion. Why would it be frivolous now but not when it was filed? I'd like to hear from someone at Army DAD how they are making the decision whether to assist appellants seeking cert.

Anonymous said...

Either coin flip or by drawing names out of a hat.

John O'Connor said...

Someone needs to check that coin to make sure one of the sides actually says "represent accused for cert."

Anonymous said...

That coin doesn't say "represent accused at IRO hearings or administrative separation boards" either. Does that mean I don't need to show up? Or does it mean that the coin is not really worth that much?

Dwight Sullivan said...

Article 70 expressly says that appellate defense counsel will represent the accused before the Supremes when requested by the accused:

(c) Appellate defense counsel shall represent the accused before the Court of Criminal Appeals, the Court of Appeals for the Armed Forces, or the Supreme Court—
(1) when requested by the accused;
(2) when the United States is represented by counsel; or
(3) when the Judge Advocate General has sent the case to the Court of Appeals for the Armed Forces.

Now that doesn't necessarily mean that the appellate defense counsel must file a cert petition for every client whose case has been affirmed by CAAF; representation before the Supremes may consist of telling the accused that he or she has no non-frivolous issue and telling the accused how to file pro se. But if there is any non-frivolous issue and the accused wants to go to the Supremes, Article 70 would appear to require the appellate defense counsel to file a cert petition on the client's behalf.

Anonymous said...

I know it is an outside the box thought, but did anyone consider that Army DAD may actually have a process that works and does not like to file frivolous cases? Just a thought- they may be just lazy or confused, or maybe they dont care. But, gosh, maybe they actaully think before they tell a client- good luck here is the pro se package. Just a thought.

Marcus Fulton said...

Maybe they do. If they do, then someone knows the answers to the questions I asked in the first comment.

I'm not busting on Army DAD. But ever since CAAF granted the writ in the Lovett case last fall, I've been interested in what an appellate counsel's responsibility is to clients that lose at CAAF and want to take their case up on cert. Anon 2101's comment suggests that either the issue in this case was frivolous. Was it frivolous at CAAF? Is there a different standard for a cert petition?