I read something poignant today. A number of CAAFlog posts have discussed the cert petition in Christian v. United States, a pro se IFP petition filed by a USDB inmate. The Supremes requested a response from the S.G., which he recently filed.

The first QP in the petition concerns the effective date of LWOP, which has been the issue in a series of CAAF opinions. See, e.g., United States v. Ronghi, 60 M.J. 83 (C.A.A.F.), cert. denied, 543 U.S. 1013 (2004); United States v. Stebbins, 61 M.J. 366, 368 (C.A.A.F. 2005); United States v. Christian, 63 M.J. 205 (C.A.A.F. 2006). If it takes this many cases to resolve the issue, it seems to me that the issue rises above the frivolous standard.

Supreme Court Rule 42.2 uses the term “frivolous” but doesn’t define it. Unfortunately I don’t have a copy of Stern & Gressman at home. But this definition of frivolousness from a 7th Circuit opinion seems pretty good: “An appeal is frivolous when the result is obvious or when the appellant’s argument is wholly without merit.” Indianapolis Colts v. Baltimore, 775 F.2d 177, 184 (7th Cir. 1985).

Under that test, how many people think that a cert petition on the effective date of LWOP is frivolous? I don’t. But Christian tells us that an Army DAD counsel said it was.

The second QP in Christian’s pro se IFP cert petition is: “Where Petitioner requested representation to the Supreme Court, per Article 70, UCMJ, and was denied this right, was his 6th Amendment right to representation denied”?

The cert petition says that when Christian’s military appellate defense counsel called him to tell him he lost at CAAF, the counsel also said “she would not represent him to the Supreme Court, as it was too expensive and the issue was not good enough.” Christian, cert petition at 15. After Christian asked to speak to the head of DAD, he received an appointment to talk to another appellate defense counsel. Id. at 16. According to the cert petition, that lawyer said Christian “was not going to be represented because his issue was ‘frivolous’ and that decision had been signed off by the division chief.” Id.

In his argument section, Christian writes: “The defense appellate division, has for years, flagrantly denied this Constitutional right to military prisoners, who depend on them for honest representation. If our defense counsel is not our friend in court, who is? The rules for bringing a petition for a Writ of Certiorari are so complex, that many of us cannot comprehend them. Add to that the frustration of trying to get the defense appellate division to do their job, and at the same time trying to get someone here at the United States Disciplinary Barracks to help, and it is only through sheer pig-headedness that one gets their petition in to the Clerk of the Court inside their 90-day window.” Id. at 17.

Now I was an appellate defense counsel for many years, so I certainly don’t automatically believe anything that a resident of the USDB puts down on paper. But the very fact that Christian’s cert petition was filed pro se seems to provide considerable corroboration for his claims.

Also, I am well aware that given the Supremes’ track record over the last couple of decades, this is really an issue about losing with counsel’s help or losing without counsel’s help.

But that being said, I have no doubt that when I was a captain at Navy-Marine Corps Appellate Defense, we certainly would have filed a cert petition on Christian’s issue if one of our clients asked us to. Super Muppet, Clipper — you have been stationed there more recently than I; is that still the case? Is Christian right that his case is not anomalous but reflects a common practice at Army DAD? If so, does anyone want to defend that policy? Because without hearing from that side, I find Christian’s argument pretty convincing. Sure he makes some legal mistakes in his assertions, but that just goes to prove his point that he needs a lawyer by his side.

–Dwight Sullivan

4 Responses to “A poignant plea”

  1. Marcus Fulton says:

    I never disagreed with a client over whether to file a cert petition, at least not in a case in which the Court had jurisdiction. And when I decided to file one, I never had to convince a boss.

  2. Phil Cave says:

    And Dwight’s right, he never had to convince me too hard.

  3. Jason Grover says:

    I was lucky enough to participate in seven Supreme Court filings, six petitions and one amicus to a petition. The Division was always extremely supportive. One of the benefits of a Division that does actively file cert petitions is it provides a training ground. I am sure that the Rose petition was better based on the experience LT Mizer got in Fisher, Strother, and Disney.

  4. John O'Connor says:

    I have a sort of related question. What was the jurisdiction of CAAF to order Appellate Defense to represent Lovett for a cert petition? Even if Lovett was correct that he had a statutory right to that representation, how is that within CAAF’s limited jurisdiction. That strikes me as if someone had pulled Clinton v. Goldsmith out of the Military Justice Reports that they have in the CAAF library, because I don’t see how representation at the Supreme Court bears on protecting CAAF’s jurisdiction.