Thursday, January 15, 2009

Government opp to Rodriguez recon petition

The Government has filed its opposition to the recon petition in United States v. Rodriguez, __ M.J. ___, No. 07-0900/MC (C.A.A.F. Jan. 6, 2009). I've posted it here. But the copy I secured wasn't great, so it's a bit hard to read. If anyone wants to throw a better copy over our virtual transom (, I'll replace it.


Cloudesley Shovell said...

Both the Gov't and defense submissions are interesting reading.

I learned a hard lesson once about the significance of service, notices of appearance, addresses, and all that. Lucky for me the consequences were trivial. I don't think that's going to be the case here.

All I have to say is woe betide the poor attorney who walks into a civilian courtroom and complains to the judge that service on his law firm is ineffective because he was not personally served. The judge would eat his lunch, and then call the firm partners in and chew them up for dessert.

Dwight Sullivan said...

Sir Cloudesley,

Would you agree that a military appellate defense division is not and cannot be treated the same as a law firm? While working at both the Navy-Marine Corps and Air Force appellate defense divisions, I've represented accuseds who had co-accuseds with adverse interests being represented by other lawyers in the same division. ABA Model Rule 1.7(a)(1) and its various state incarnations would prohibit a lawyer at a law firm from doing so. Also while working at appellate defense divisions, I've brought IAC claims against other lawyers in the same division arising from their previous work on the case. Again, that's not something that a lawyer at a law firm could do.

If the military wants the benefit of not treating appellate defense divisions as firms for purposes of so fundamental a concern as conflict of interest, then why should the military get to treat the appellate defense division as a firm for purposes of service -- particularly when the relevant statute (Article 67(b)(2)) refers to service on "appellate counsel of record," and NOT on the office of the appellate counsel of record?

Eugene R. Fidell said...

Military practice concerning service is often deficient. Certificates of service ought to be signed by an attorney, not a paralegal. They also ought to state the name of the attorney being served and his/her address, as well as the exact means of service. A rubberstamp or generic reference to counsel should be avoided. (Service on civilian counsel by opposing counsel as well as some courts is also spotty, but that's another post.)

Anonymous said...

The Gov't response is disingenous. It argues that Ms. Forsee's - a NMCCA secretary - certification that the decision was "served on the appellate defense counsel" means that the decision was actually delivered to Maj Cheney. What a crock! I hope CAAF slams the Government attorney for making such an impermissible leap in a factual claim. If an appellate defense counsel made such a logical leap, they would be the recipient of a nasty footnote in a court decision.

Worse, the Government attorney is misleading the tribunal by not being completely honest with how service works. What is the standard that prosecutors use to judge truth? "The truth, the WHOLE truth, and nothing but the truth." Well, the Government's argument is misleading. It should concede that it does not know whether MAJ CHENEY was actually served; and it should concede that "service" consists of nothing more than a stack delivery from one office (NMCCA) to another office (Code 45). And, to use the Government attorney's language, to discover the process, "all it would take is a phone call."

It is indeed fitting that the Government's position comes down to reliance on a rubber stamp. What a beautiful metaphor for the state of military justice and how seriously courts take the rights of servicemembers. A rubber stamp!

John O'Connor said...

I think of an appellate defense shop as like a collection of solo practioners who share office space (or at least have offices on the same floor) and share the cost of a secretary who works for all of them. The secretary andswers the phone and opens the mail for everyone, essentially working for multiple "firms."

Anonymous said...

But, JO'C, NOT if the appellate attorney has left active duty and no longer works in that office. That "firm" has effectively gone out-of-business.

And the true test under an ethics regime for such attorney-supervisor / secretary-subordinate relationships is reciprocity: the secretary's actions are only binding on the attorney to the extent that the secretary is subject to the attorney's supervision.

The harsh answer in the military is that there is no attorney supervision. The Division Director & Deputy set-up the office procedures. Attorneys cannot dictate and truly "supervise" - they certainly can't fire - in a way that makes the secretary's accountable.

Anonymous said...

IRT to Code 45's structure and organization (or lack thereof), the real problem is that the Navy likes to have it both ways: some times it adopts the "multiple firms" model (conflicts, most notably), other times it wants a "single firm" (automatic reassignment of counsel upon transfer, service). The only consistent guiding principle I can discern is what's easiest and cheapest for the government, not what's in the best interest of the appellant. The same approach is applied to the NLSOs, with legal assistance departments having stricter conflict rules than defense departments.

Cloudesley Shovell said...

I see no reason why service that is satisfactory under Fed.R.Civ.P. 5 is somehow unsatisfactory in the military, and that attorneys in military practice need to be personally handed every piece of paper. Personal service is only required for the initial summons and complaint in civil court. See Fed.R.Civ.P. 4 (and even then, the process server can just leave it with someone "of suitable age and discretion" at your home). After that it's all mail or service through the office.

Let's assume someone serves you by mail at either Navy-Marine Appellate Defense or at A.F. Appellate Defense. Does the mailman come to your office? No. The mail gets delivered in bulk to the Division, and some clerk sorts it out. How is that different than the clerk being served with decisions from the CCA or pleadings from another Code? It isn't.

Fed.R.Civ.P. 5(b)(2) lists the ways motions, filings, etc. can be served once a case is started. Mailing to a last known address always works, and is complete on mailing. Otherwise, you can leave it "at the person’s office with a clerk or other person in charge or, if no one is in charge, in a conspicuous place in the office." Fed.R.Civ.P. 5(b)(2)(B)(i).

Nothing there about law firms. Just "at the office." Defense counsel's attempts here to narrowly define "office" as his personal 80 square feet don't impress me. I agree w/ what J O'C said in that regard.

Socrates hints that what happened is that the first DC left active duty, and apparently nobody was assigned to the case. Did the first DC fulfill his duties under NMCCA Rule 3-6 to withdraw, identify successor counsel, affirm a thorough turnover, etc? Did replacement counsel file a notice of appearance, as required by the rules? If there was compliance with NMCCA rules, I suspect the defense would have pointed that out by now.

I think that a lot of military practicioners don't appreciate (1) the significance of service (at least not until now) or (2) how service is actually accomplished, or (3) the importance of notices of appearance. I completely disagree with the idea that military appellate counsel have to be treated as individual entities for purposes of service, and that persons attempting to serve them have some unique obligation to track each one down for personal service of every pleading. Surely it is not asking too much to expect the military to set up and maintain an office capable of dealing with routine administrative matters. After all, that's what the law expects of every other attorney out there. How to deal w/reserve counsel is another question. My personal opinion is that, as a matter of admin efficiency, reserve counsel should be served through their respective reserve coordinators at the divisions, the reserve coordinator being their agents for service.

I also disagree completely with Socrates' idea that a clerk's actions are binding on the attorney only to the extent that the secretary is subject to the attorney's supervision. I sure as heck didn't supervise either my (shared) secretary or any of the paralegals in the private firm--they all worked for the partners. That didn't change the fact that something served on one of them was effectively served on me.

Dew_Process said...

The burden is always on the party claiming service. Ironically, I am working on a civil case to set aside a default judgment where service was made on the "last known address" [8 years earlier] when all they had to do was open up the phone book to get my clients current address. They sure found her bank account to seize quickly enough after getting the judgment.

But, I've commented earlier and must agree with Gene's assessment, the military is really sloppy when it comes to "service" issues, if not outright derelict.

Cloudesley Shovell said...

Dew Process:

Sounds like what you're talking about there was service of the summons and complaint. That normally requires personal service. I personally always used the local sheriff. Not only cheaper than many commercial process servers, but a better witness if service was ever challenged.

It's a different matter once the case gets going, and esp. when attorneys are involved. From then on, it's always mail to the address on the pleadings, or fax, if local rules permitted it.

I knew firms that would spend a couple hundred dollars on a messenger to avoid giving opposing counsel the extra few days to respond when serving by mail. I also knew counsel that would fax stuff on the due date at 8 or 9 (or later) at night. For that reason, some firms would turn off their fax machines outside working hours, precisely to avoid getting served late at night (local rules required a "successful transmission" fax receipt from the sender).