Comments on: Pro se military litigant asks to extend cert deadline

By: Snuffy

Snuffy — Wed, 28 Apr 2010 14:06:54 +0000

JAGs just carry out the wishes of the apellant no matter how frivolous it may seem? Please. Have you ever read any code of professional ethics?

By: Anonymous

Anonymous — Wed, 27 Jan 2010 20:06:41 +0000

Hatter,

You seem to have some insight into this case. What were the charges & what were the assignments of error that 45 deemed to be frivolous?

By: Dwight Sullivan

Dwight Sullivan — Wed, 27 Jan 2010 17:25:49 +0000

As to the “Amanda Hugginkiss”‘s argument advanced earlier that CAAF granted review, therefore there must be a non-frivolous issue, the apparent reason why CAAF granted review in the case to which the Mad Hatter refers above was to fix a scrivener’s error:

“It is directed that the promulgating order be corrected to reflect that the finding for Specification 3, Charge V, be changed to w/d to accurately indicate that the specification was withdrawn by trial counsel at trial.” United States v. Johnson, 68 M.J. 187, 187 n.* (C.A.A.F. 2009) (summary disposition).

By: Mad Hatter

Mad Hatter — Wed, 27 Jan 2010 17:20:49 +0000

Dwight Sullivan’s last post makes a compeling counter argument as to Code 45 handling of this issue. It always seems to come down to Code 45/appelate defense counsel’s interpretation of frivious. Intrestinly enough, Dwight Sullivan’s comments on 26 Jan 07 @2348 seem to support that Code 45 would have filed even though the DAD said the appelants issues were frivolous…”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.” Marcus Fulton’s response in that samae post was,” 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.”

The case name is Johnson and number is 200800020

By: Dwight Sullivan

Dwight Sullivan — Wed, 27 Jan 2010 17:06:15 +0000

I understand that yesterday the Navy-Marine Corps Court denied the petition for extraordinary relief to which the Mad Hatter referred, which arose in a case called Johnson.

By: Cloudesley Shovell

Cloudesley Shovell — Wed, 27 Jan 2010 17:03:35 +0000

Thank you CAAFlog for that concise and straightforward explanation of the law.

By: Dwight Sullivan

Dwight Sullivan — Wed, 27 Jan 2010 16:42:08 +0000

Austin vs. United States, 513 U.S. 5 (1994), precludes a member of the Supreme Court’s bar from filing a frivolous cert petition even where a statute (in that case the CJA as implemented by the Fourth Circuit’s rules) provides that the counsel will represent the petitioner in that forum. A military appellate defense counsel enjoys the privilege of filing cert petitions only because he or she has been admitted to the Supreme Court’s bar and is operating as an officer of the Court. A military appellate defense counsel may not, therefore, file a cert petition that the counsel believes to be frivolous.

CAAF’s order in Lovett v. United States, 64 M.J. 232 (C.A.A.F. 2006), does not and cannot hold to the contrary. All Lovett held was that under Article 70, a military appellate defense counsel couldn’t terminate the attorney-client relationship before the cert process had concluded. CAAF expressly noted that the “question before us is not whether counsel must file any particular matter in the course of representation before the case is final as a matter of law.” In other words, CAAF didn’t say counsel had to file a cert petition on behalf of the accused. Rather, CAAF held that counsel was wrong to sever the attorney-client relationship.

An appellate defense counsel properly discharges his or her duties by explaining to the client that there is no non-frivolous issue in the case and the counsel is therefore forbidden from filing a cert petition on the accused’s behalf, but is available to explain to the accused how to file a pro se cert petition. That discharges the counsel’s duties under both Article 70 and the Supreme Court’s rules. The advice that Code 45 provided to the accused described in the Mad Hatter’s post above was, therefore, exactly right (assuming that there was no non-frivolous issue in that case — a question about which I have no information or opinion.) BTW, Mad Hatter, could you please give us that case name and, if you have it, number? That’s one we should follow.

By: jonas

jonas — Wed, 27 Jan 2010 16:18:34 +0000

I thought all along the courts got to decide which issues are frivolous?, last time I check Jags carries out the wishes of the appellate how ever frivolous it may seem and are paid well enough by the tax payers to do so. Tax payers who when they entrust their sons and daugthers into the arms of the US military expect them to be afforded every opportunity to enjoy due process. Its why the tax payers pay us people.!!

Oh and article 70 is not at the whim of the appellate shop.

By: Mad Hatter

Mad Hatter — Wed, 27 Jan 2010 16:11:30 +0000

NMCCA has a pro se Petition for Extraordinary Relief in the nature of a writ of mandamus pending right now on this very issue. Article I, § 8, clause 14 of the United States Constitution gave the authority to Congress to create Article 70(a) which says the appelant has the right to counsel.

Austin vs. United States, 513 U.S. 5 (1994) fails to address the orginal issue of frivolous because unlike Anthony Austin, a service member has a constitutional right under Article I, § 8, clause 14 to file an appeal. United States v. Grostefon, 12 MJ 431 (CMA 1982), predates Article 67(a) so CAAF never addressed requirement of raising appellant issues to the Supreme Court.

Lastly, my favorite…Code 45 said, ““If you wish to raise your issues at the Supreme Court, you will either need to hire a civilian attorney or file a pro se petition” This comment seems to be in direct contradiction of CAAF’s ruling in United States v. Lovett, 63 M.J. 211, 212 (C.A.A.F. 2006) which mandates that the Respondent must represent the Petitioner under Article 70 until the case is final as a matter of law.

Of course the appellant’s deadline for filing with SCOTUS has passed because of Code 45 refusal. As a result, NMALA discharged the appellant.

By: Marcus Fulton

Marcus Fulton — Wed, 27 Jan 2010 15:10:50 +0000

This issue has come up before. CAAF has held that Art. 70 requires that the JAG provide counsel for purposes of appellate review under Art. 67a. Lovett v. United States, 64 M.J. 232 (C.A.A.F. 2006). If the issue isn’t frivolous, then the appellant shouldn’t have to go pro se. Since Grostefon predates Art. 67a, you could even imagine an argument that says as long as the appellant wants to raise an issue, counsel has to go along, although my guess is that the test is whether the issue is frivolous.

By: LC

LC — Wed, 27 Jan 2010 13:22:10 +0000

CAAF will sometimes grant and affirm when there are no issues simply because the sentence was really high. For example, if someone is convicted of rape and sentenced to 60 years confinement, but there are no issues, CAAF would grant and affirm simply to give the Appellant the option of taking it to the Supremes if he/she wanted to. Just to be nice :0)

By: Amanda Hugginkiss

Amanda Hugginkiss — Wed, 27 Jan 2010 12:56:24 +0000

But CAAF granted and affirmed…doesn’t that mean there are necessarily non-frivolous issues?

By: jonas

jonas — Wed, 27 Jan 2010 08:42:32 +0000

just another day to close the doors of the higest court to service members.”the appellate devision doesn’t think the appeal has merit to the supremes”. what pervasive arrogance and insolence.!!

By: Anonymous

Anonymous — Wed, 27 Jan 2010 04:00:16 +0000

not necessarily, if the appellate division doesn’t think the appeal has merit to the Supremes then it is sent up pro se.

By: Amanda Hugginkiss

Amanda Hugginkiss — Wed, 27 Jan 2010 01:41:30 +0000

Why is this guy pro se? I thought military appellants had free representation all the way through a Supreme Court denial?