I haven’t yet listened to Wednesday’s oral argument in United States v. Moss, No. 13-0348/AR (CAAFlog case page), but today CAAF ordered the parties to file briefs on four additional issues:

I. Whether the decision to appeal to this Court is a personal decision of the Appellant, and if so, in what manner may such a decision be made?
II. Whether there is any evidence in the record that the Appellant has authorized an appeal to this Court, and if there is no such authorization, is there nonetheless a continuing duty to represent the Appellant, and if so, from where does this duty derive?
III. In circumstances where the Appellant cannot be located during the time period available to file a petition for grant of review at this Court, what is the responsibility of appellate defense counsel in the context of the statutory time limit in Article 67, UCMJ, to file an appeal?
IV. Should this case be dismissed with prejudice under the holding in United States v. Schreck, 10 M.J. 226 (C.M.A. 1981)?

The court also specifically invited the other services’ appellate divisions to file amicus briefs.

Case Links:
ACCA opinion
Blog post: At a trial in absentia, defense counsel gave an unsworn statement, then invoked. CAAF understandably curious…
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview
CAAF argument audio
Blog post: CAAF orders additional briefing

12 Responses to “CAAF orders additional briefing in Moss”

  1. stewie says:

    Preview of Hasan?  He almost certainly will not authorize an appeal to CAAF nor submissions thereunto.

  2. Former DC says:

    I suspect Stewie has hit the nail on the head. It is well known that discretionary review courts, like the Nine and CAAF, keep on the lookout for issues they want to address. (See, “The Brethren”). If they address these issues now, in a much less emotionally and politically charged case, they will be settled law long before Hassan makit’s his inevitable arrival. Pretty slick move, really. It doesn’t tip their hand as to the opimerely but it does avoid part of the circus. 

  3. ResIpsaLoquitur says:

    Unrelated, but anybody seen this?  The SECAF nominee apparently thinks that commanders should be “graded” on how they handle sexual assault cases when coming up for promotion.   http://www.airforcetimes.com/article/20130919/NEWS/309190039/SECAF-nominee-Commanders-should-held-accountable-sexual-assault

  4. SFC V says:

    I’m not sure Issues I and II will be applicable to Hasan because review of cases where punishment extends to death isn’t discretionary.
    Article 67 reads in part:


    (a) The Court of Appeals for the Armed Forces shall review the record in—


    (1) all cases in which the sentence, as affirmed by a Court of Criminal Appeals, extends to death
    Issue III will be helpful but it won’t answer the question of whether or not appellate defense counsel can file briefs and raise issues in contravention of the client’s wishes.

  5. Contract Lawyer says:

    Yes, they have Hasan in mind.  Study decide this case and use it as precedent when Hasan’s officious intermedling appellant counsel file his appeals without his authorization.  Even if the appeal was client endorsed here, they will establish precedent for later.  Since ther may be problems finding drugs for the execution, I have some rope I can loan them.

  6. phil cave says:

    1.  Sometimes clients withdraw their case from appellate review. It’s done in writing for various reasons. But can that be done in a dp case?
    2.  How is it possible that a single party – the United States – gets four bites at the apple?
    3.  Can the appellant object to amicus filings of the other appellate government divisions on the theory the Appellee – the United States – is speaking with up to four voices and that allows Appellee to avoid the word/page count for a brief, or is the court impliedly granting Appellee to exceed the page length. If the Coast Guard wants to contribute to the argument why should that not have to be in the basic brief; that would not violate the practice of non collaboration between the party and amici, it’s the same party. An oddity which I think is limited to military appellate courts?  At trial we have the one counsel rule, why not on appeal?

  7. Tami says:

    Hasan can’t withdraw his case from appellate review.  ACCA will specify issues, and I’m sure will order briefs, but Hasan will probably only submit a couple of pages.  Certainly his appellate lawyers will face the same problems his trial attorneys faced.

  8. Former DC says:

    I wonder if Hasan could do a reverse Grostophon? Meaning, could he direct that issues NOT be addressed? Also, what issues did he preserve at trial? I’m betting, none. 
    If I might suggest to No Man or Zack, this is a good topic for a separate thread. 

  9. Contract Lawyer says:

    What issue did Hasan preserve at trial?  Perhaps the right to present a jihad defense?

  10. Michael Lowrey says:

    Moss had signed the typical paperwork authorizing an appeal to the CCA before she deserted the second time just before trial. Defense council hasn’t been in contact with her since she deserted again and she can’t be located — so what happens now? See, basically, the issues CAAF just ordered briefings on. This is a rather different issue than will likely happen with Hasan.

  11. stewie says:

    I get it, it’s possible the client only wanted to go forward to the CCA but not the CAAF.  But the odds are that if she wanted to take one level appeal, she probably wanted the second level of appeal, and given the lesser of two evils choice here, it seems to me the appellate defense counsel picked the right one IMO.

  12. John O'Connor says:

    These absentia cases are a hoot.  I tried a minor assault case in absentia in around 1996.  On sentencing, I brought an admin clerk in to tell the members that the accused was UA.  The defense counsel hilariously got to argue on sentencing that he was sure his client would want to be retained.