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.

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
Appellant’s specified issue brief
Appellee’s (Government) specified issue brief
CAAF opinion
Blog post: Opinion analysis

7 Responses to “Opinion Analysis: United States v. Moss, No. 13-0348/AR”

  1. Cloudesley Shovell says:

    Interesting to watch the ebb and flow of the jurisdictional tides at CAAF.  Unlike the winds at Dolly Sods, not always going in the same direction.

  2. Lieber says:

    How is it amazing that she wasn’t held in PTC?  She’d only run once.  In my experience, most Army magistrates will not keep someone in PTC on those facts (after she had run the second time it would be a different story).  Heck, I had someone get picked up after almost 10 years…still no PTC.

  3. stewie says:

    I think I side with Judge Baker.  Why can one defend an absent accused at trial  and at the Service Court but not continue that defense on appeal to CAAF?  I don’t see the logic.  I understand the argument, but agree with Baker that it’s not consistent logic but results-based logic.

  4. Zeke says:

    I think it important to not that the MCM envisions trial defense counsel as being the lawyer who counsels the accused on whether to file an appeal or not; not appellate defense counsel.  In paragraph (E)(ii) of the Discussion to R.C.M. 502(d), the MCM provides that trial defense counsel have a duty after trial to examine the record and complete and “appellate brief” to the client.  Further, in paragraph (E)(iv), in relevant part, trial defense counsel are given the following duties:
    “[E]xplain[ing] to the accused the rights to appellate review that apply in the case, and advis[ing] the accused concerning the exercise of those rights.  If the case is subject to review by the Court of Criminal Appeals, [trial] defense counsel should explain the powers of that court and advise the accused of the right to be represented by [appellate] defense counsel before it. . . . [Trial] defense counsel should also explain the possibility of further review by the Court of Appeals for the Armed Forces and the Supreme Court. . . . If the case may be examined in the office of the Judge Advocate General under Article 69(a), [trial] defense counsel should explain the nature of such review to the accused. . . . [Trial] defense counsel must explain the consequences of waiver of appellate review, when applicable, and, if the accused elects to waive appellate review, [trial] defense counsel will assist in preparing the waiver.”
    Thus, R.C.M. 502(d) provides that it is trial defense counsel who is responsible for advising the accused as to the merits of pursuing an appeal before all courts in the appellate chain.  Supporting that proposition, the President has also promulgated R.C.M. 1202(b)(2), which specifies that appellate defense counsel are not even to be detailed to provide representation to an accused until a case has been docketed with the Court of Criminal Appeals – long after the accused will have received advice from trial defense counsel and made his or her elections regarding whether to appeal the conviction and sentence. 
    The standards of our profession support the MCM’s requirement that an accused make the decision of whether to appeal in the immediate aftermath of trial, prior to the detailing appellate defense counsel, and in confidential consultation with trial defense counsel.  ABA Standard 21-2.2(b) states that trial defense counsel must “advise the defendant on the meaning of the court’s judgment, of defendant’s right to appeal, on the possible grounds for appeal, and of the probable outcome of appealing.”  Id.  ABA Standard 21-2.2(a) makes clear that trial defense counsel “should continue to represent a sentenced defendant until a decision has been made whether to appeal and, if an appeal is instituted, to serve the defendant at least until new counsel is substituted, unless the appellate court permits counsel to withdraw at an earlier time.”
    The Air Force has adopted the same approach as the ABA in promulgating the Air Force Standards for Criminal Justice (Air Force Standards), found at Attachment 2 of Air Force Instruction 51-201.  Air Force Standard 4-8.2 requires that trial defense counsel must:
    “[E]xplain to the accused the meaning and consequences of the court’s judgement and the accused’s appellate rights.  The defense counsel should give the accused his or her professional judgment as to whether or not there is a meritorious ground for appeal and to the probable results of an appeal.  The defense counsel should also explain to the accused the advantages and disadvantages of an appeal.  The decision to withdraw a case from appellate review must be the accused’s own choice.”
    All of the above mean that when a case comes to appellate defense counsel, the decision to appeal should have already been made, after full consultation with trial defense counsel about the possible grounds for appeal and the likelihood of success.  At that point, Air Force Standard 4-8.3 gives appellate defense counsel the duty to advise their client concerning the issues which could be raised on appeal and whether those issues might be successful.  Appellate defense counsel are then required by that Air Force Standard to present the case on behalf of their client even if they believe the effort will be fruitless, and are merely required to “endeavor to persuade the client to abandon a wholly frivolous appeal.”  The use of the word “abandon” in that Air Force Standard is conspicuous, confirming that the appeal is already underway when appellate counsel is detailed.  Air Force Standard 4-8.3 concerning the duties of appellate defense counsel mirrors ABA Standard 21-3.2.  Neither standard envisions appellate defense counsel asking a client to second-guess the decision they already made to appeal – unless the appeal is, in that lawyer’s assessment, “wholly frivolous.”
    Therefore, as far as I can tell, all applicable authorities (at least in the Air Force) give trial defense counsel, rather than appellate defense counsel, the duty of advising an accused of their appellate rights, advising on whether to exercise those rights, and to then help give effect to that election.  There is no suggestion in any source that this decision must be made again before the appellant proceeds to file a petition with each next level court of appeal.  Instead, once a decision to appeal is made by an accused, in consultation with trial defense counsel, appellate defense counsel are obliged respect that decision as being the quintessential goal of the representation, and to zealously pursue it before every court in the appellate process.

  5. phil cave says:

    Zeke, you misunderstand.
    Back in 1993 there was a very lengthy discussion within the Navy about this very issue – placing the burdens on trial defense counsel in regard to appeals.  It was all part of the perennial discussion on how to redo the appellate process for streamlining, efficacy, and fairness, blah, blah, blah.
    Take a look at United States v. Palenius, 2 M.J. 86 (C.M.A. 1977).
    How should we deal with the answer to this question.  In how many cases does an appellant win relief on an issue that is reviewed under the “plain error” standard of review.  I assume you understand why the plain error standard has to be applied.
    Remember, the “Discussion” is not binding, and I suggest mainly would hortatory here.  See United States v. Miller, 47 M.J.352, 356 ((C.A.A.F. 1997).
    I agree about 38(c).  Wish more trial defense counsel would submit a 38(c) brief to the CA in NG cases.  I can understand not doing that in GP cases.  But if the DC believes there’s a good appellate issue, raise it in a 38(c) brief – do the work.
    Is it not correct that civilian practice is different on who represents an accused for an appeal?  So, the “Standards” may not be applicable in the same manner as the military where we have two levels of representation.  Also, there’s a slight difference between Anders briefs in civilian cases and Grosty, which the “Standards” don’t exactly address.  I will assume you are aware of United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) and United States v. Quigley, 35 M.J. 345 (C.M.A. 1992).  A military appellant may raise a wholly frivolous issue on appeal.  Of interest, and I don’t remember the exact number, but a review of appellate cases will find a number where the courts have given significant relief on a Grosty issue.
    Finally, the language you cite from the MCM lead to some confusion on when a person could withdraw from appellate review – before or after the CA action, which is it?

  6. Zachary D Spilman says:

    Remember, the “Discussion” is not binding, and I suggest mainly would hortatory here.  See United States v. Miller, 47 M.J.352, 356 ((C.A.A.F. 1997).

    See also part 2 of my 6-part series on the 2013 changes to the UCMJ, where I discuss the self-acknowledged non-binding nature of the “discussion” sections. In particular, note the disclaimers of authority contained in the very first discussion section, found in Part I of the MCM (the preamble).


  7. Zeke says:

    My read of Pelinius confirms that it is trial defense counsel, not appellate defense counsel, that bears the burden of advising the client on whether to pursue an appeal.  “The trial defense attorney should familiarize himself with the grounds or issues, if any, which should be argued during the appeal before the Court of Military Review. These should be discussed with his client and passed on to the appellate defense counsel when that counsel enters the case.” U. S. v. Palenius, 2 M.J. 86, 93 (C.M.A. 1977).
    Once that decision to appeal has been made, and appellate defense counsel is detailed to represent the accused, I see no burden for that new lawyer to second guess the client’s election to pursue an appeal (unless pursuit would be “wholly frivolous.”  The problem in Palenius was not that appellate defense counsel had not adequately advised the client, but that trial defense counsel had so failed.  I understand the reluctance to dump additional post-trial duties upon trial defense counsel.  But the truth of the matter is that if that attorney does not provide complete and accurate advice – not merely on the availability of appeal, but also on the issues that could be raised and their likelihood of success or failure – then a client might waive appeal and never receive that advice at all.