Forest Whitaker won the 2007 best actor Academy Award for his role as Idi Amin in The Last King of Scotland. Inexplicably omitted from the nominees in that category was Samuel L. Jackson for his boffo performance as Neville Flynn in Snakes on a Plane. Who can forget his line, “Enough is enough! I have had it with these mother****in’ snakes on this mother****in’ plane!”? In last week’s Fordyce opinion, ACCA lets loose its inner-Neville Flynn. The message that rings through the four separate opinions in Fordyce is, “Enough is enough! We have had it with this mother****in’ poor representation during mother****in’ post-trial processing!”
As we noted on Thursday, ACCA issued a published en banc decision dealing with post-trial representation, available here. United States v. Fordyce, __ M.J. ___, No. ARMY 20090160 (A. Ct. Crim. App. May 6, 2010) (en banc). Senior Judge Conn wrote the opinion of the court, joined by five other judges. Three other judges separately concurred in the result.
The majority declined to reach the issue of whether PVT Fordyce had received ineffective assistance of counsel, but nevertheless ordered a do-over of the post-trial process.
The court noted that PVT Fordyce had a wife and five children. His sentence imposed by a GCM included confinement for 12 months and forfeitures of $500 pay per month for six months. Of course, his sentence to confinement also resulted in automatic total forfeiture of pay and allowances during his period of confinement. See UCMJ art. 58a. Nevertheless, the defense counsel’s 1105/1106 submission didn’t request either deferral or waiver of automatic forfeitures. Nor did the submission include a statement from PVT Fordyce or any other enclosures. PVT Fordyce submitted a declaration to ACCA claiming that his defense counsel didn’t contact him post-trial and never advised him about deferral and waiver of automatic forfeitures. The defense counsel submitted an affidavit saying she spoke to PVT Fordyce several times during his confinement and that she had advised him concerning deferral of forfeitures. But the paperwork she had from the case didn’t reflect that she advised him about asking the CA to waive the first six months of automatic forfeitures pursuant to Article 58b, nor could she specifically recall advising PVT Fordyce about waiver of automatic forfeitures.
ACCA observed, “We expect defense counsel to fully inform their clients of [Article 58b] and, when appropriate, advocate its application on their clients’ behalf.” Id., slip op. at 5.
ACCA noted that the defense counsel used a standard form to provide the post-trial advice to PVT Fordyce, but that standard form didn’t include a discussion of waiver of automatic forfeitures. Due to this faulty standard form, ACCA “decline[d] to make a specific finding that the presumption of professional competence has been overcome.” But while not finding IAC, “we nonetheless find there was error in the post-trial handling of appellant’s case, because we are not convinced appellant was ‘afforded a full opportunity to present matters to the convening authority prior to his action on the case.'” Id. (quoting United States v. Hawkins, 34 M.J. 991, 995 (A.C.M.R. 1992)). ACCA found a colorable showing of prejudice arising from PVT Fordyce’s statement that he would have sought waiver of automatic forfeitures had he been properly advised.
ACCA noted that the case’s outcome rendered moot PVT Fordyce’s complaint that the defense counsel didn’t solicit his input for the 1105/1106 submission. But the court proceeded to give guidance to trial defense counsel to avoid such claims in future cases:
First, when possible, we urge the laudatory practice of some counsel to have an accused co-sign R.C.M. 1105 and 1106 submissions, or at a minimum sign an acknowledgement that the matters submitted are all the accused wishes to submit. . . .
Second, we urge a practice, which would demonstrate on the record that appellant received both proper written advice on post-trial rights and the opportunity to submit post-trial matters to the convening authority.
Id., slip op. at 7.
Judge Cook, Judge Ham the Great, and Judge Baime each separately concurred in the result, each concluding that the trial defense counsel was ineffective.
Judge Ham the Great’s concurrence sets out a helpful nutshell of trial defense counsel’s five post-trial duties:
First, . . . defense counsel must fully and accurately advise their soldier-clients of their post-trial and [appellate] rights, including those rights concerning deferral and waiver of forfeitures as applied to both adjudged and automatic forfeitures, and then defense counsel must execute their client’s decisions concerning those rights. . . .
Second, defense counsel must maintain an ongoing attorney-client relationship during the post-trial period, including regular communication with their soldier-clients. . . . [The attorney-client relationship] does not end until ‘appellate counsel have been properly designated and have commenced the performance of their duties . . . .’ . . . This is to ensure ‘the uninterrupted representation of the accused.’ . . .
Third, defense counsel must review the staff judge advocate’s recommendation, and prepare his response to it. . . . While counsel must consult with the soldier-client when determining whom to contact for potential clemency submissions, it is the attorney’s responsibility to gather and prepare the post-trial submission, not the client’s. . . . .
Fourth, despite the duty to qualitatively advise the soldier-client, once defense counsel provides that advice, the defense counsel is bound to submit those matters the client elects to submit.
Fifth and finally, overlaying the first four basic tenets, appellate defense counsel must, in consultation with the soldier-client, develop a strategy for the post-trial phase, and devise tactics designed to successfully implement that strategy and attempt to achieve its goals.
Id., slip op. at 14-17 (Ham, J., concurring in the result) (quoting United States v. Palenius, 2 M.J. 86, 93 (C.M.A. 1977)).
Judge Ham the Great’s concurrence included a couple of other nuggets. First, she disagreed with the idea that counsel’s deployment is good cause for severance of an attorney-client relationship:
Unlike the Coast Guard Court of Criminal Appeals, we have never held that deployment of either the soldier or his attorney establishes good cause, and, in fact, defense counsel routinely remain on cases despite deployment or redeployment of either the counsel or the represented soldier. See United States v. Garcia, 68 M.J. 561, 565 (C.G. Ct. Crim. App. 2009). As the Army’s current practice forcefully demonstrates, deployment is not a “truly extraordinary circumstance rendering virtually impossible the continuation of the [attorney-client] relationship.” Iverson, 5 M.J. at 442-43.
Id., slip op. at 15. Note that last month, CAAF denied a petition for grant of review in Garcia, a denial that I found quite surprising. United States v. Garcia, __ M.J. __ , No. 10-0199/CG (C.A.A.F. Apr. 9, 2010).
The second nugget involves how to request financial clemency in a case like this, which involves both adjudged forfeitures and harsher automatic forfeitures:
In general, a better overall defense strategy focused on monetary assistance to dependents is to request deferral of adjudged and automatic forfeitures from their effective date until action, disapproval of adjudged forfeitures at action, and waiver of automatic forfeitures for six months from action or until appellant’s release from confinement or parole, whichever occurs first, with direction that such waived forfeitures go to appellant’s dependents.
Id., slip op. at 12 n.3.
Finally the combination of Fordyce, NMCCA’s recent en banc published Hutchins decision concerning the manner in which a Marine trial defense counsel leaving active duty terminated an attorney-client relationship, and the ongoing litigation over Marine Corps defense counsel who retain clients when reassigned to a billet in which the trial counsel is now the defense counsel’s reporting senior suggests the need to revisit trial defense level SOPs with the obvious frustration of the appellate judiciary in mind.