CAAF decided the Army case of United States v. Moss, No. 13-0348/AR, 73 M.J. 64 (CAAFlog case page) (link to slip op.), on Monday, January 27, 2014. A sharply divided court declines to address any of the granted issues in the case, which questioned whether Appellant received ineffective assistance from her military defense counsel when he gave an unsworn statement on her behalf during her trial in absentia. Instead, a narrow majority of the court finds that Appellant did not authorize the appeal to CAAF, and it vacates the grant of review.
Judge Erdmann writes for the court, joined by Judges Stucky and Ryan. Chief Judge Baker writes a lengthy dissent, joined by Senior Judge Effron.
Appellant was absent from her unit for approximately three years before she was captured and charged with desertion. Her detailed defense counsel successfully negotiated a pretrial agreement that capped her eventual confinement at six months, and they began planning her sentencing case. Then, two weeks before trial, Appellant again took flight (amazingly, she was not held in pretrial confinement pending trial). Appellant was then tried in absentia and convicted, by a special court-martial composed of officer members, of one specification of desertion in violation of Article 85, UCMJ.
But during the sentencing phase of the court-martial, Appellant’s detailed defense counsel read an unsworn statement to the panel in the first person, representing that it was Appellant’s statement. The statement included reference to a sick aunt, “Viola.” But the Government then called Appellant’s father in rebuttal, and he explained that there is no Aunt Viola. Appellant was then sentenced to reduction to E-1, forfeiture of $978.00 pay per month for twelve months, confinement for six months, and a bad-conduct discharge.
Best I can tell, Appellant’s whereabouts are still unknown. But she signed routine forms before deserting the second time that caused her to be assigned appellate defense counsel. That counsel made the claim of ineffective assistance of counsel that was rejected by the Army CCA and that CAAF was to consider (though, for reasons discussed in my argument preview, I think CAAF would have firmly rejected the claim). But at oral argument before CAAF, the court got very curious about whether Appellant had personally authorized the appeal of the CCA’s decision (a requirement discussed in United States v. Larneard, 3 M.J. 76, 82 (C.M.A. 1977)), and the court ordered additional briefing on four specified issues (discussed here), including:
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?
Judge Erdmann’s opinion explains that the appellate defense counsel acknowledges that Appellant did “not signed a specific authorization for appeal to this court nor had he spoken to her and obtained a verbal authorization to appeal on her behalf.” Slip op. at 6. Rather, he argued that:
Moss’s completion of the “Post Trial and Appellate Rights Advisement” constituted an implied authorization for such an appeal, and, when combined with counsel’s ethical duty of continued representation, he was required to pursue the appeal before this court on Moss’s behalf.
Slip op. at 6. Notably, Judge Erdmann’s majority opinion refers to Moss as “Moss,” while Chief Judge Baker’s dissent refers to her as “Appellant.” But the majority finds the “Post Trial and Appellate Rights Advisement” insufficient to authorize the appeal to CAAF:
ACCA. The language concerning a possible appeal to this court was informative only, and Moss’s exercise of her right to counsel before the ACCA cannot be construed to authorize a subsequent appeal to either this court or the Supreme Court.
Slip op. at 11. Surprisingly, the majority reaches this conclusion despite the parties agreeing otherwise:
The parties also agree that Moss’s completion of the “Post Trial and Appellate Rights Advisement” reflected her intent to appeal to this court and therefore constituted an implied authorization to proceed with the appeal.
Slip op. at 9. Instead, Judge Erdmann writes that “the attorney-client relationship was limited to representation before the ACCA.” Slip op. at 13. And he concludes that “since the decision to appeal to this court is personal to an appellant, and because Moss did not authorize the appeal, this court lacks statutory jurisdiction under Article 67(a)(3) and the appeal must be dismissed.” Slip op. at 14.
Chief Judge Baker’s dissent opens with some strong language:
The Court reaches for a jurisdictional issue the parties did not raise or appeal and that we need not decide. In doing so the majority reaches an erroneous conclusion that dramatically curtails the jurisdiction of this Court to provide appellate and civilian review of trials in absentia.
Diss op. at 1. He and Senior Judge Effron would decide the case on the IAC issue (though there is no indication of how they would rule), and their concern for ensuring civilian appellate review of courts-martial is a major theme of the dissent. “Civilian review is a sine qua non for the credibility of the military justice system,” he writes on page 5 of the dissent. And, he contrasts the ability to try a case in absentia with the inability to appeal a case in absentia:
Further, the majority’s analysis is contradictory and fails to recognize or address the tension between the exercise of jurisdiction to conduct trials in absentia and the asserted lack of jurisdiction to permit appeals in absentia. The UCMJ contains no express prohibition on the actions that a defense counsel may take on behalf of a client to include representation during a trial in absentia as well as an appeal. Nonetheless, the majority finds that a trial in absentia with a defense counsel who is not specifically authorized to represent the accused has jurisdiction, but an appeal of that trial where an accused cannot be shown to have authorized the appeal explicitly deprives this Court of jurisdiction. I do not see how this result is consistent, how it involves jurisdiction, or how it is fair. But that is the result. A defense counsel can represent an absent accused at trial but not on appeal.
Diss. op. at 6. Chief Judge Baker isn’t trying to say that trial in absentia are prohibited, but instead he believes that:
references to the accused in Article 67, UCMJ, like the references to the accused in Article 39, UCMJ, must be read reasonably in light of the history and purpose of the UCMJ. If the accused can be tried in absentia under Article 39, UCMJ, then there is no statutory reason to read Article 67, UCMJ, as prohibiting an appeal in absentia.
Diss op. at 7. Finally, Chief Judge Baker recognizes that the majority’s result can be avoided by simply rewriting the “Post Trial and Appellate Rights Advisement” that Appellant signed before she deserted, which provided plenty of authorization for her appeal to the CCA, to explicitly include appeals to CAAF and the Supreme Court. But he sees problems with this approach:
Such an authorization will neither be informed nor based on a particular decision of the Court of Criminal Appeals. It will be defensive in nature to ensure jurisdiction in the event of appeal. But of course, having authorized an appeal, appellate defense counsel will be bound to appeal.
Diss. op. at 10. He also acknowledges the ethical dilemma this may pose for military appellate defense counsel, who are appointed automatically and at no cost to an appellant, noting that the majority avoids “even addressing or explaining how a lawyer might fulfill his or her ethical duty to represent clients zealously and diligently when the client cannot be located, for whatever reason, to authorize an appeal personally, and where the lawyer believes meritorious issues warrant appeal.” Diss op. at 11.
Moss is an unusual case. Even the granted issues of IAC were factually convoluted by Appellant’s absence. But the broader message is clear: Post-trial rights advisory forms need to be updated to explicitly authorize an appeal to CAAF or the Supreme Court in the absence of the appellant, perhaps with language invoking the professional judgment of the appellate defense counsel (to avoid the merely-reflexive appeals feared by Chief Judge Baker).
This result brings to mind CAAF’s 2012 decision in the Article 62 case of United States v. Dease, 71 M.J. 116 (C.A.A.F. 2012) (CAAFlog case page), where the court found that the accused’s revocation of consent to test his urine – made in a form-letter notice of representation from his detailed defense counsel – required suppression of the results of the analysis of the urine. After Dease was decided, I participated in a working group that revised the form-letter notices of representation used by Marine Corps defense counsel, in order to incorporate the lessons of Dease. Similar revisions to the standard post-trial rights advisories are sure to follow in the wake of Moss.
• 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
• Appellant’s specified issue brief
• Appellee’s (Government) specified issue brief
• CAAF opinion
• Blog post: Opinion analysis