CAAF today affirmed NMCCA’s decision in United States v. Garner, No. 09-0729/MC.  Here’s a link to the opinion.  More later.

17 Responses to “CAAF issues opinion in Garner”

  1. retort says:

    Gladish doesn’t even say travel is an absolute requirement in every case. CCA and the government should read an opinion before disagreeing with it.

  2. Cloudesley Shovell says:

    Interesting that CAAF did not even delve into the Gladish v. Goetzke argument.

    I guess if one wants to argue on appeal that certain conversations amounted only to “fantasy role play”, pleading guilty and admitting to making a substantial step is a bad tactic.

  3. John O'Connor says:

    I’m not a believer that it’s a great use of appellate resources to litigate at two levels whether the accused is actually guilty of that to which he pleaded guilty at trial?

  4. John O'Connor says:

    I should have ended that last comment with a period and not a question mark.

  5. Lee Marsh says:

    I’m with you, JO’C.

  6. Anonymous says:

    so if he isn’t provident because he actually couldn’t have committed the crime (which is the level one analysis of the argument), doesnt matter because he pled guilty?

    You are going to have to explain that to me, because that seems like a very appropriate use of appellate resources.

  7. DC Steve says:

    Even better, how about a: !?!

  8. Late Bloomer says:

    He’s not provident says you. A plea of guilty is something like the strongest form of proof known to man (I’m sure I butchered that). Now that he’s facing the business end of that plea, of course he wants to attack it.

    I’m not saying that a dive should never be attacked on appeal, but I certainly agree that it should be the exception and not the rule.

  9. Anonymous says:

    Sure, this accused is a dirty dude, but saying “hey, he plad guilty” is an easy cop out for prosecutor-types. The accused’s supposed attorney owes a duty to client to litigate this issue. Apparently, appellate DC was doing what should have been done at the trial level. The Supremes recently raised the bar for DC to advise clients about collateral consequences. Hopefully, DC use this “opinion” to advise their clients about the direct consequences of a guilty plea.

  10. Cheap Seats says:

    Let’s not disparage “prosecutor-types” for saying they don’t like the system as it is set up. I am a Trial DC and applaud the Appellate DC for doing a great job. I just tend to agree that we spend a lot of time and resources on appeals of guilty pleas. I know that as a DC I would be remiss for not having long discussions with clients about the effects of Guilty pleas. But the hours of providency and months/years of appeals seem a bit excessive. And I’m not even a “prosecutor-type.”

  11. John O'Connor says:

    “The accused’s supposed attorney owes a duty to client to litigate this issue. Apparently, appellate DC was doing what should have been done at the trial level.”

    —————–

    Anon, I’m not sure why you would say this. It “might” be true that the trial DC should have litigated this issue, but I don’t know that and you probably don’t know either.

    Lots of times the evidence of guilt is stronger than that which comes out during the providence inquiry, as the accused’s incentive is to say just enough to get a plea accepted, and the government has little incentive to do more. So we can’t really say, absent inside info, whether the full body of facts left the attempt charge as litigable.

    Also, we don’t know whether the accused made a conscious decision not to litigate the issue. I can’t tell from the opinion whether there was a PTA. It’s possible that the accused made a knowing decision to plead to the attempt charge in return for sentencing protection, or made a knowing and conscious decision to plead even without a PTA.

    I’m all for having trial defense counsel litigate any and all issues that (1) are litigable and (2) the accused wants to litigate. But I don’t know (and you probably don’t either) whether the attempt issue was actually litigable and whether the accused made an informed decision not to litigate it. Absent that information, it’s hard to cast aspersions on trial defense counsel.

  12. Anonymous says:

    “But the hours of providency and months/years of appeals seem a bit excessive. And I’m not even a “prosecutor-type.” When I first got to Code 46, I agreed with you. But when you step back and learn that the vast majority of the cases at the appellate level are the result of guilty pleas, and the ADC has to raise anything that could merit relief for his client, I understood and accepted it. I it’s a guilty plea, your avenues for relief are very narrow.

  13. Cheap Seats says:

    Oh, I get that part and admire both our appellate government and defense counsel. I understand they work within the system. What I would propose is an overhaul of the system where guilty pleas are concerned. Of course the avenues are narrow and one has to thread that needle. That is being a lawyer. Maybe the policy makers should change the providency/appeal model.

  14. John O'Connor says:

    Agree 100% with Cheap Seats.

  15. Anonymous says:

    “It “might” be true that the trial DC should have litigated this issue, but I don’t know that and you probably don’t know either.”

    Isn’t that why we have appeals?

  16. Anonymous says:

    that assumes we have high quality judge advocates who are experienced at crim law in all three positions (Judge, TC and DC).

    I don’t dispute the high quality part 99% of the time, but the crim law experienced part? Even for judges it often isn’t true.

    And we want to streamline the process and pretend like all of these folks are experienced and will catch issues?

    They are partially why we still have scripts and providency. We don’t have judges and prosecutors and defense attorneys who have been doing this for 10-15 years.

    We have TC who have been doing it maybe for 10 months. DC who might have two or three times that experience, and MJ who might not have touched crim law since they were a junior Major COJ (and then they just did admin/post trial stuff) or a CPT.

  17. John O'Connor says:

    Did someone allege IAC? I didn’t see that.

    Why don’t we just get rid of trials on guilty pleas and just deal with all the issues at the CCA.