Yesterday, the N-MCCA denied a petition for an extraordinary relief in McMurrin v. United States, No. 200900475 (N-M Ct. Crim. App., 20 Nov 2011). This is the same Fireman McMurrin as United States v. McMurrin, 69 M.J. 591 (N-M. Ct. Crim. App. 2010) (en banc) (aff’d, 70 M.J. 15 (CAAF, 2011)) (blog posts here and here). In that case, some findings and the sentence were set aside and a rehearing on sentence authorized.

The rest of the story comes from yesterday’s order:

Captain (CAPT) Paul C. LeBlanc, JAGC, USN, and Captain (Capt) Michael D. Berry, USMC, represented the petitioner before both appellate courts and formed an attorney-client relationship with the petitioner. . . .

In June 2011, CAPT LeBlanc and Capt Berry requested that the CA fund their representation of the petitioner at his courtmartial proceedings. The CA declined. In July 2011, charges of negligent homicide and failure to obey a lawful order were preferred and the CA directed an Article 32 investigation into those charges. The Article 32 investigation was held in August 2011. CAPT LeBlanc and Capt Berry were not present. The newly preferred and investigated charges were then referred to a general court-martial. The charges which were affirmed by this court and returned to the convening authority with a rehearing on sentence authorized are not before the current court-martial. In September 2011, during pretrial motions, the military judge denied a defense motion to recognize CAPT LeBlanc and Capt Berry as detailed trial defense counsel. The record does not reflect that the petitioner has submitted a request that CAPT LeBlanc and/or Capt Berry be assigned to represent him as individual military counsel. See Rule for Courts-Martial 506, Manual for Courts-Martial, United States (2008 ed.). The case is currently stayed pending resolution of the petition for extraordinary relief.

The CCA denied the petition, ruling:

We are not persuaded that this set of circumstances merits an extraordinary writ. First, although CAPT LeBlanc and Capt Berry have an attorney-client relationship with the petitioner and are properly assigned to represent him before this court and the Court of Appeals for the Armed Forces, there is no evidence presented in support of this writ that they were ever detailed to represent him before a trial court. The petitioner relies principally on Morgan for the proposition that appellate defense counsel join trial defense counsel as part of an appellant’s “growing defense team.” 62 M.J. at 635. The petitioner argues that the military judge’s erroneous consideration of Morgan’s applicability to this case is an abuse of discretion. However, an abuse of discretion is not a “usurpation of power.” The petitioner continues to retain his original detailed trial defense counsel and does not demonstrate that representation by only these two attorneys, without the assistance of CAPT LeBlanc and Capt Berry, would deprive him of a “clear and indisputable right.” Second, we note that the petitioner has not exhausted his remedies short of extraordinary relief. In particular, he has not requested the assignment of CAPT LeBlanc and/or Capt Berry as individual military counsel. Lastly, we are not convinced that the normal course of appellate review would be insufficient to resolve this case. If the petitioner is convicted at this trial, he will have the benefit of subsequent review and will have the opportunity then to argue why he believes that the principles of United States v. Morgan were violated, or why the absence of CAPT LeBlanc and Capt Berry resulted in undue prejudice to his court-martial.

17 Responses to “N-MCCA denies writ for appellate defense counsel seeking to join trial defense team”

  1. Eugene R. Fidell says:

    The separation of trial and appellate defense functions merits attention. At present, only those able to afford private counsel have the advantage of continuity of representation as a matter of right.

  2. Zachary Spilman says:

    Agreed. Especially considering that in the federal system, Assistant US Attorneys and Federal Public Defenders keep their cases for the appeal of right. Were the military to adopt a similar system, it would improve the quality of trial advocacy immensely and eliminate many appellate issues (most of the issues I see in records of trial are the result of inexperience). Of course, such a move would also eliminate (or significantly reduce in size) the appellate divisions…

  3. H Lime says:

    Zach: in some US atty offices the trial prosecutors handle the appeals; in others, a devoted appellate division handles the appeals.  There’s a good argument that in our generalist system, you’d dilute the appellate representation if trial counsel are routinely flying to DC to litigate appeals, and your appellate branch is only litigating a trickle, at most a handful of cases, per year.  In fact, the judges with the most appellate experience–the 15 year CAAF judges–would be faced with the appellate litigators with the least appellate experience writing and litigating appellate issues.

    Probably a dream situation for defense counsel, those odds, but the United States would be in a very bad position indeed. 

    Maybe a better solution is to, as the Army does, require a tighter integration of the appellate and trial teams.  (As the Army says, “there’s a Reg for that.”)  Or, create a unified prosecution branch: right now, there are so many chefs stirring the pot, it’s borderline comical.

  4. SomeDC says:

    It is interesting that the government is able to use their appellate counsel for rehearings and Dubay hearings at their leisure but the defense is not allowed the same luxury.

  5. anon says:

    Agree with H Lime.  Further, the appellate process for civilians is normally bifircated to address collateral issues (such as IAC) versus direct appeal issues.  Maintaining the relationship through the appellate process also has a logistical component to it since the process time from trial through completion of the appellate process is commonly longer than a normal tour.  It is worth noting in this case that according to the NMCCA appellant did not even requested the retention of counsel in this case.

  6. Peanut Gallery says:

    anon @0902:  The opinion only says that the appellant didn’t request them as IMC. 
    I don’t think the current system is broken, per se.  But I agree with SomeDC that the government seems able to use appellate counsel when it’s convenient. 

  7. Zachary Spilman says:

    In some US atty offices the trial prosecutors handle the appeals; in others, a devoted appellate division handles the appeals.

    I stand corrected. Thanks.

    There’s a good argument that in our generalist system, you’d dilute the appellate representation if trial counsel are routinely flying to DC to litigate appeals, and your appellate branch is only litigating a trickle, at most a handful of cases, per year.

    This is a good argument for an all-star appellate division that assists trial and defense counsel with the appellate process. However, I haven’t changed my opinion that we need to get more trial-level litigators appellate-level experience (and the corresponding mindset) if we’re going to improve. The Article I military justice system looks more like the Article III federal system every year.

  8. SomeDC says:

    IMC is a red herring.  Under the JAGMAN appellate counsel are not reasonably available.  In fact, the Court saying the accused should submit an IMC to exhaust admin remedies is disingenuous since such a request would be denied and nothing more than an exercise in futility. 

  9. Dwight Sullivan says:

    Anon 0902 — I read the decision differently.  It doesn’t say that the accused didn’t request retention of counsel.  It says he didn’t seek to IMC them.  But, of course, you can’t IMC an appellate defense counsel.  “[T]he law does not require the doing of a futile act.”  United States v. Ortiz, 35 M.J. 391, 393 (C.M.A. 1992) (quoting Ohio v. Roberts, 448 U.S. 56, 74 (1980)).  The accused’s argument is that his appellate defense counsel remain part of his team for purposes of the remand; he doesn’t have to make a futile IMC request to perfect that issue.

  10. H Lime says:

    Zach @ 0921.

    Re the need “to get more trial-level litigators appellate-level experience”: I’m on board with that, as is every appellate litigator I talk to, in every government appellate division.  The “NIMBY” attitude of green TCs and AGCs–and ditto, DCs and ADCs–cannot prevail long in a system where the judges at the top hold us, and particularly the United States, to the presumption that every level of the prosecution is fully integrated.  If we lose an issue because of a TC musing offhandedly about what the United States’ position is, because of “law of the case,” or because a timely Article 62 notice wasn’t filed at trial–we don’t get a pass on appeal because the TC didn’t understand “invited error,” because “the TCs hadn’t read the most recent CAAF caselaw about Article 62 notice timing,” or because “the AGCs at the CCA were wet behind the ears and didn’t understand law of the case.”

    You’re 100% right.  A change is a’ comin to the miltiary justice system, like it or not.

  11. Peanut Gallery says:

    I am surprised at how few trial litigators I speak with stay abreast of CAAF cases, much less read this blog. 

    Wouldn’t an easy band-aid (and it would be just that, a band-aid) be to provide some rudimentary appellate training at C-ville, Newport, and Maxwell?  Why not teach the basics of preserving issues and protecting the record.  I realize that this sometimes conflicts with trial strategy.  But as some pointed out in another thread, if that happens, trial strategy should trump appellate preservation.   

  12. stewie says:

    I didn’t know this blog existed til I got to the appellate level, and now that I am back at the trial level I read it every day and highlight it to my counsel to read.

  13. Zachary Spilman says:

    Wouldn’t an easy band-aid (and it would be just that, a band-aid) be to provide some rudimentary appellate training at C-ville, Newport, and Maxwell? Why not teach the basics of preserving issues and protecting the record.

    I think this assumes that there is enough institutional knowledge to (1) teach this material, and (2) sustain it in the fleet. Competency requires “see one, do one, teach one.” Where are we?

  14. Dew_Process says:

    To preserve issues or “protect the record” assumes sufficient familiarity and competence as to know what issues need to be preserved in the first place and then how to preserve them procedurally.  If you’re not keeping up with what issues CAAF is granting review on or the Supremes granting cert on, you’re probably not going to do that very well.  One often overlooked source of “institutional knowledge” are Reserve JAGs who are either prosecutors or public defenders in their civilian jobs who try a lot of cases vis-a-vis the average military TC or DC.

    E.g., I’m reading a RoT right now where a bright, but relatively inexperienced DC, heard these words from the MJ: “Counsel, is that your only theory of admissibility?”  Instead of asking for a moment to “confer with co-counsel,” he simply said “yes” prompting the – you know it’s coming – “objection sustained.”  The issue was impeaching the key prosecution witness’s credibility by her prior drug use.  A modicum of preparation would have demonstrated that prior drug use per se isn’t proper impeachment for credibility.  But, this witness had already admitted to being drunk at the time of the incident and repeatedly said she “wasn’t sure” in her responses because her “memory wasn’t too good.”  Needless to say, there was a conviction as I’m reading a verbatim RoT.  Here, the point being, the real issue of whether her memory problems were due (at least in part) by her extensive drug use, wasn’t preserved, even though the trial DC thought it was.

    There are probably as many theories on how to “fix” this as there are readers of CAAFlog – which as I tell young counsel, is as good of a place as any to stay-up on what’s happening in the land of Oz.

  15. Peanut Gallery says:

    A relatively cheap, easy, and effective tool that I’ve seen used is an annotated trial checklist.  This is a soup-to-nuts checklist from preferral to CA action with annotated cases that hit the important points-of-law along the way.  If used regularly, it becomes muscle memory.  That is actually one of the beauties of the courts-martial process.  It’s pretty uniform.  There’s even a script available.  If something looks or sounds out of place, it probably is. 

    “May I have a moment your Honor?” [whip out the annotated checklist and make sure nothing is amiss.] 

    “We’re ready to proceed your Honor.”


  16. Ama Goste says:

    Excellent idea, Peanut Gallery–as long as the checklist gets regular updates that account for the latest caselaw.

  17. Dew_Process says:

    Peanut Gallery – Agree 100%.  The AF JAG school used to require that as part of the moots – don’t know if they still do or not.  But, an up-to-date “Trial Notebook” where one [prosecution or defense] thinks out evidentiary issues in advance and has the applicable MRE or caselaw available, is invaluable during the “fog of war” in a courtroom.