CAAF yesterday granted review of two issues in United States v. Green, No. 09-0523/AF:

I.  Whether Appellant was denied his Sixth Amendment right to effective assistance of counsel.

II.  Whether the lower court abused its discretion in failing to grant Appellant’s request for CM’s mental health records from Lakeside Behavioral Health System.

AFCCA’s unpublished decision in the case can be found hereUnited States v. Green, No. ACM 37074 (A.F. Ct. Crim. App. Feb. 10, 2009).

On Wednesday, in a divided decision, CAAF denied leave for Airman Basic Andrew Witt–a military death sentenced prisoner whose direct appeal is now pending before AFCCA (and on whose defense team I serve)–to file an amicus brief in support of granting the second issue in GreenUnited States v. Green, __ M.J. __, No. 09-0523/AF (Sept. 16, 2009).  The majority — consisting of Judges Erdmann, Stucky, and Ryan — denied the motion without comment.  Judge Baker, joined by Chief Judge Effron, dissented.  Judge Baker wrote:

Airman Basic Witt, an appellant in the Court of Criminal Appeals, requests the opportunity to file an amicus brief to inform this court as to how the issue(s) presented in the instant case will, in his view, impact the broader and uniform application of the law, including in his case.  Our rules do not preclude such a filing, nor indicate the standards by which this court should evaluate such a request.  In that context, the courthouse door should be open, not closed.  As a result, I would grant the motion; the court could then determine what consideration and weight, if any, to give to the filing.

5 Responses to “CAAF grant”

  1. Phil Cave says:

    This is interesting.
    AFCCA relied on post-trial statements of the members to find that even if there was deficient performance, there’s no prejudice. Slip. 4.
    Contrast with recent cases where post-trial comments of “jurors” or Members and judges can’t be used to set-aside a decision?

  2. LTC Slade says:

    Why on earth would CAAF deny Witt’s request to file? Could it be they’re overworked? Not hardly. Could it be they fear a deluge of amicus filings? They shouldn’t…we’re talking about a fairly closed universe of interest in military cases. I just don’t get it… Judges Baker and Effron are right on this one.

  3. Phil Cave says:

    Perhaps the majority is thinking that there will be sufficient in-house cooperation between the appellate counsel?

  4. Dwight Sullivan says:


    I certainly hope the fact that some of AB Witt’s counsel work in the same office as Green’s counsel wasn’t the rationale for denying AB Witt’s motion for leave to file an amicus brief.

    I don’t want to whine about being on the losing side of a particular order. But longtime readers will know that I’ve been critical for some time of CAAF’s amicus policies. So the rant that appears below really isn’t aimed at the Green case. Here goes.

    Under CAAF’s rules, an appellate government division can file an amicus brief AS A MATTER OF RIGHT. But, of course, the various appellate government divisions represent the same client — and that client is a party in every direct appeal before CAAF and is probably either a named party or a true party in interest in every petition for extraordinary relief and writ appeal before CAAF. Is there any other context in which a party gets to file an amicus brief in support of itself?

    On the defense side, it’s always important to remember that an appellate defense division is not and cannot be a law firm. A law firm can’t simultaneously represent clients with adverse interests. See ABA Model Rule of Professional Conduct 1.10. Military appellate defense divisions not only can, but routinely do provide such representation.

    I currently represent clients of both the Air Force Appellate Defense Division and the Navy-Marine Corps Apepllate Defense Division. But I have no control over what counsel in those divisions do in other cases and, in fact, I have very little visibility over what counsel do in those other cases. If it turns out that one of my clients has an interest in an issue that another counsel presents in the same case, would it be good policy to, in essence, prevent that client from filing an amicus brief due to the happenstance that he or she is represented by a counsel in the same division as the other case? What if the client were also represented by retained civilian counsel? Should the policy be the same? If not, is it problematic to give a servicemember reduced access to CAAF because he or she didn’t hire a civilian counsel?

    CAAF’s current amicus rules also provide another appellate defense division with a right to file an amicus brief. So, in essence, if a counsel for a soldier, sailor, Marine, or Coastguardsman wants to weigh in on an Air Force case, he or she can do so as a matter of right by convincing the office’s leadership to file an amicus brief. But a counsel for an airman can’t do the same.

    And, one of my personal pet peeves, all the while CAAF is routinely accepting amicus briefs from student faux amici — including, in at least one case, two student amicus briefs filed on behalf of the same named amicus arguing opposite sides of the case.

    I think that CAAF’s amicus rule and policy should be reevaluated.

  5. John O'Connor says:

    I agree with much of what Dwight says about amicus policies. To me, the idea that different appellate government divisions can take different positions on issues such as jurisdiction in the same case is, well, not good.To the extent some moron law student has a better chance of getting leave to file an amicus brief than an accused claiming an interest ina granted issue also strikes me as unsound.

    That’s not to say CAAF should have allowed the amicus filing here. I haven’t looked at this case in any detail and am not saying CAAF is wrong in denying leave. But the goofy amicus standards that seem to apply (particularly as it relates to different positions asserted in the same case on behalf of the United States) undermine the Court’s legitimacy.