Monday, May 25, 2009

CAAF assesses petitions' timeliness

We previously looked at CAAF's order from last Wednesday indicating that blown petition deadlines may lead to disciplinary proceedings against appellate defense counsel. United States v. Angell, __ M.J. ___, No. 09-0098/AR (C.A.A.F. May 20, 2009). It turns out that Wednesday's daily journal entries included quite a bit more action on the petition timeliness front.

In seven other cases, arising in various procedural postures, CAAF kicked out-of-time petitions. (United States v. Tuberville, No. 08-0612/AF; United States v. Greenwood, No. 08-0618/AF; United States v. McCarns, No. 08-0653/AR; United States v. Thomas, No. 08-0688/AR; United States v. Mendoza, No. 09-0097/AR; United States v. Valentine, No. 09-0144/AR; United States v. Cox, No. 09-0291/AF).

But in another three cases in which the petition for grant of review was filed more than 60 days after the relevant CCA's opinion, CAAF accepted the petition because the neither the actual service nor constructive service clock had yet expired. In United States v. Espisito, No. 08-0547/NA, CAAF concluded that service on the appellant at the brig where she was no longer confined was insufficient to constitute constructive notice. In United States v. McClory, No. 09-0072/AR, CAAF concluded that mailing ACCA's opinion to the appellant's permanent address wasn't sufficient to constitute constructive service where that wasn't the address that the appellant provided on his appellate rights form. Similarly, in United States v. Sanga, No. 09-0177/AR, CAAF found that mailing ACCA's opinion to an address different than the one on the appellate rights form was insufficient to constitute constructive service.


Mike "No Man" Navarre said...

CAAF now jurisdictional petition dates will (have already) become the AEDPA of the MilJus system. They will create a massive amount of litigation, seemingly contradictory holdings, and once a few case rules develop, require actuarial skill to determine if they have been followed.

Senator Specter, if you are listening, add this to the Equal Access Act, maybe if the bill clarifies this rule Sen. Graham won't block it.

Anonymous said...

Notably, all the cases that were bounced were Army and Air Force.

Anonymous said...

ANON 1306:

Check the daily journal. CAAF just bounced a Navy case.

Anon 1306 said...

Thanks Anon 0754. I looked up the case, and this is actually pretty outrageous. The issue in that Navy case is that the Appellant got a life sentence and had a PTA provision which required him to wait 20 years before requesting parole. Defense raised that it was an unlawful provision, but NMCCA disagreed and held that it looked just fine to them.

Of course such provisions were declared unlawful by CAAF just two weeks later in U.S. v. Tate, 64 M.J. 269 (C.A.A.F. 2007). Unfortunately for Mr. Person, he has now lost what would have been a summary reversal on that issue due to negligence by his lawyers.

In light of that, Effron and Baker should have done more than simply reference their dissents from Angell. A case such as this one, where negligence by counsel has barred a certain reversal (of a PTA provision), it should be incumbent upon the JAG to certify. They should have explicitly raised this point.

If nothing else, this is a pretty good habeas claim. But for this to slip through the cracks is an embarassment to Navy Appellate Defense. Such things should only happen in the Army and Air Force.

FYI, the NMCCA opinion can be found here:

Anonymous said...

Navy Appellate Defense represents issues, not people. (Or in this case, not Person) If its an exciting appellate issue, the shop is abuzz. Discussions, debates, briefs, moot courts, etc.

Communication with the client? Almost never. Nuissance. That's what clerks and form letters are for.

Appellate Defense is a chance to perfect writing skills and to shine in the spotlight of oral argument. The dark and dreary work of communicating with clients is just the burden to bear.

Person did not "slip through the cracks." Navy Appellate Defense is the crack.

The leadership at Navy Appellate Defense needs to be flushed-out and client-centric training and focus brought in. One idea would be to install a defense lawyer with actual defense experience to lead the division.

Another idea would be to judge performance, at least partially, like every other service organization does, by asking the customer how he or she rates the service.

Anonymous said...

I've never worked in appellant defense, but I have done trial level defense. So just theorizing, if there is a problem with communicating with the clients in appellant defense I think one of the main reasons would be that appellant defense doesn’t have to worry about automatic appeals (with another layer of lawyers reviewing everything they did ) and stupid Grostefon issues. To avoid those issues at trial level, I think consistent care and feeding of the client was even more important than the outcome of the case (within reason). I know I went out of my way to keep the client happy.

Without that extra layer of review that the military appellant system has for the trial defense attorneys I hope CAAF does enforce their deadlines with appellant attorneys. Most of the time in the civilian world a missed deadline like that would result in BAR discipline, usually a public remind at minimum.

Anonymous said...

Anon at 12:29, your point about appellate defense attorneys having nobody reviewing THEIR work is a subtle one.

One very good CCA judge, who had previously worked in Appellate Defense, told me that when you get a file as an appellate defense attorney, the first thing you should do is "call the client. Find out what he wants." Every professional - in every field that is called a profession - develops a relationship with the client or customer. This should be done even before reading the record of trial. Tell the client that you just got his file and have not reviewed it yet.

Every year, about 15 cases that an appellate defense lawyer submitted as a "merits" brief ("I could not find any errors, but I submit it to this Court on its merits.") get flagged by the CCA as having potential appellate issues. Although, ironically, the CCA almost never finds merit in the issues it spots, it is nevertheless an embarrasment to the appellate attorney who "mailed it in" and did not err on the side of his/her client.

Leadership at appellate defense divisions should be able to conduct "spot checks" on random clients, simply asking the servicemember: "This is COL X, Director of the Appellate Defense Division and the supervising attorney here. Without getting into the details of the discussion, because that is privileged and I do not want to hear about it, when was the last time that your attorney contacted you?" The answers will not be pretty.

Anonymous said...

Talk about an appellate defense attorney "mailing it in" - see CAAF's daily journal:

No. 09-0235/AR. U.S. v. Stacy N. SHERROD. CCA 20070932. On consideration of Appellant’s supplement to the petition for grant of review (and the attached materials), it appears that the Appellant’s pleading, submitted under United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), does not comply with the requirements of Grostefon for appellate defense counsel to list or identify the specific issues asserted under Grostefon. While it is appropriate to attach Appellant’s submission for consideration by the Court, this does not relieve appellate defense counsel of the obligation to identify the specific issues, even if they do not require extensive briefing. Grostefon, 12 M.J. at 437. Accordingly, it is ordered that appellate defense counsel file an additional pleading that lists or identifies the specific issues for the Court’s consideration under Grostefon, and that this pleading be filed with the Court within 10 days of the date of this Order.

So the appellate defense counsel could not even be troubled to organize and put the best possible rendering of his/her client's complaints before the court?

This is a passive-aggressive way of winking to the court, "F--- my client!"