In an en banc published decision issued today, ACCA ordered a new CA’s action due to the trial defense counsel’s failure to completely advise the accused about potential post-trial relief from the CA.  United States v. Fordyce, __ M.J. ___, No. ARMY 20090160 (A. Ct. Crim. App. May 6, 2010).  The case is available here.  I’ll post more about the decision over the weekend.

12 Responses to “ACCA on post-trial representation”

  1. Anonymous says:

    Nice to see the concurrences really come out and say IAC. I understand that desire not to go there unless you have to, but seems like the Service Courts too often go too far in avoiding playing the IAC card when it is necessary.

  2. Article16 says:

    …at least the defense counsel wasn’t harangued by name like the marine captain a week ago.
    Article 58b can be tough to understand for newish defense counsels–fortunately I think most defense counsels can follow along with footnote 3 in Judge Ham’s concurrence (the appropriate strategy). Hopefully, the military justice shop can also follow along or it’s even sadder.

  3. Anonymous says:

    Two points on the “tough to understand.”

    1. I will agree it isn’t anything one would know without being told or having experience. In those situations, the fault lies with the SDC, not the counsel. Having said that, this particular counsel was a former TC AND COJ, there is absolutely no reason why they would not know about deferral and waiver of forfeiture.

    2. The intricacies may be tough, but the mere fact of the need for a request are not. I mean it’s not tough to say, hey there’s this waiver and deferral thing, you’d get some money, if approved, to your family, want me to ask for it?

    I personally don’t have a problem with naming counsel as long as we are bending over backwards not to find IAC in the first place, when we do, one assumes the error is quite egregious.

  4. Article16 says:

    Maybe there should be entrance exams for these jobs…not that I didn’t do on the job training in my day.
    I agree with the concurring judges who find IAC (post-trial IAC is a little less of a ding in my opinion), but somehow I’m more offended by the prospect of a former COJ not understanding deferral and waiver of forfeiture. We do, however, live in a world where some COJs have probably never even been to the ACCA website.
    What do we make of a system were the people considering requests for relief may not comprehend them? I’m not sure the convening authority really is the best hope for relief in the hands of such advisers.
    All the same, those DCs who think post-trial work is futile are entertaining a self-fulfilling prophecy. I think post-trial works is the one opportunity for a high-speed DC to impress a high-speed SJA.

  5. RY says:

    At times, I think CCAs are too afraid to call it what it is: IAC. Perhaps they mistakenly confuse IAC with ethics boards. Just b/c a DC is found to be IAC in one aspect in one case, however, does not mean the DC is incompetent. We all make mistakes or have bad days. Good on the DC admitting the oversight.

  6. Anonymous says:

    I understand why DC think post-trial clemency in general is futile because it often is.

    However, the one area where it ISN’T futile is deferral and waiver of forfeitures.

  7. Anonymous says:

    I think it would only take a couple extra questions in the Army trial gouge to address the matter, along the lines of what we already have in the Navy/Marine Corps:

    MJ: Do you also understand that you may request in writing that the convening authority delay these forfeitures until he/she takes action in your case?

    ACC: Yes/No, your honor (sir/ma’am).

    MJ: Do you understand that you may request that the convening authority delay automatic forfeitures for up to six (6) months from the date of his/her action?

  8. Article16 says:

    yeah…but that second question should not say “delay”…it should say something like “waive automatic forfeitures for up to six months. If the convening authority decides to waive forfeitures, the payments will not go to you, but directly to the dependents or the custodian of those dependents you’d identified in your request.”

  9. Keith Hodges says:

    Note to Army Defense Counsel: you will get a new appellate rights form next week. Stay tuned.

    Keith Hodges, US Army TDS, Defense Counsel Assistance Program

  10. Ama Goste says:

    Emminizer is nearly a decade old. It seems to me it should have been added to the defense counsel checklist before now, not just for IAC purposes, but as a means of getting a good deal post-trial for your client. It’s been a while since I was a defense counsel, but we had pretty extensive written notices about pre-trial and post-trial rights even before Emminizer. With all the new areas ripe for IAC complaints these days (i.e. immigration status, sex offender registration, etc.), I’d surmise the briefing is/should be much longer now.

  11. Longtimereader1sttimecaller says:

    Another form for TDS means one more reason lawyers can rely on a form and never learn the law (and the case law) behind it. It’s following forms down rabbit holes and assuming you have the most current form that gets most TDS counsel in a mess to begin with.

  12. Keith Hodges, Army DCAP says:

    Interesting response about correcting a flaw so to create a legally adequate appellate rights form. Yes, over the last 10 years one of the hundreds in the courtroom, on the bench bench, TDS, and appellant divisions should have caught this. Now that it has been, let’s capture what we learned.

    And no, the form isn’t a substitute for what counsel should know, but it does serve as a convenient checklist of what should be discussed with the client and to memorialize what was discussed. No form like this should be given to the accused without discussion and explanation.