The amicus brief of the Air Force Appellate Defense Division in LaBella (and the Government’s response)
Tomorrow, CAAF will hear oral argument in the Air Force case of United States v. LaBella, No.15-0413/AF (CAAFlog case page). The court specified an issue related to its jurisdiction over the appellant’s case. I previewed the argument in this post.
The major theme in LaBella is the ability of a court of criminal appeals to extend CAAF’s jurisdiction over a case by allowing a tardy motion for reconsideration. Under current caselaw (that the appellant in LaBella seeks to reverse), the 60-day time period for filing a petition for review at CAAF is jurisdictional, prohibiting late petitions. Caselaw also provides that the 60-day clock doesn’t start until a CCA addresses any motions for reconsideration. But in LaBella, the motion for reconsideration was months late to the CCA. Nevertheless, the CCA allowed the motion, permitting the appellant in LaBella to move for reconsideration and (perhaps) extending the deadline to petition CAAF to 60-days after the CCA resolved the motion.
But the minor theme in LaBella is why the appellant filed a tardy motion for reconsideration. It was, in reality, the Government’s fault. The appellant’s detailed military appellate defense counsel – Government attorneys provided to the appellant at no cost and without regard to his ability to hire his own counsel, in accordance with Article 70, UCMJ – failed to petition CAAF as the appellant desired. It’s unclear from the briefs how such a screw-up occurred (particularly since the AFCCA’s two opinions in the case identify a total of six field grade Air Force attorneys as appellate counsel for the appellant), but it happened. And the Government seemingly does not dispute that it happened or that the appellant himself is entirely blameless.
With this background, I received a copy of an amicus brief filed by the Air Force Appellate
Government [bad typo!] Defense Division in support of the appellant’s argument to reverse CAAF’s caselaw that the 60-day time limit is jurisdictional. The brief is not (yet) on CAAF’s website, but it’s available here. Additionally, the Division’s motion to file the brief is available here, and it states the Division’s interest as including the fact that:
A client who waits more than 60 days has passed from notice or constructive notice of a Court of Criminal Appeals (CCA) to alert his or her Division lawyer of their desire to petition this Court currently has almost no recourse.
Mot. for Leave to File Amicus Br. at 1-2. The Division’s position invokes a hypothetical appellant who is not blameless – not exactly the facts of LaBella.
Surprisingly, the Government opposed the Division’s motion to file the brief. The Government’s opposition is available here, and its opening pages assert:
Appellant presented facts to both the Air Force Court of Criminal Appeals, which accepted his factual averment, and this Court demonstrating that his former counsel failed to file a timely petition for review with this Court contrary to Appellant’s request. The United States has not presented and does not possess evidence that challenges this factual predicate. Therefore, the matter presently before this Court does not involve a justiciable case or controversy between the adverse parties involving a “tardy client,” and Amicus’ proposed brief is irrelevant to resolution of the specified issue. If Amicus desires to make this argument, it should do so in a case where those facts are actually present. As such, the Court should deny the motion for leave to file the irrelevant amicus curiae brief.
Gov’t Ans. to Mot. for Leave to File Amicus Br. at 3. The Government’s response functionally proves that the appellant is blameless, and that it is his Government-furnished attorneys who deserve the blame for the jurisdictional conundrum facing CAAF.
CAAF permitted the motion to file the amicus brief over the Government’s opposition.