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.

20 Responses to “The amicus brief of the Air Force Appellate Defense Division in LaBella (and the Government’s response)”

  1. TC says:

    Rule 19(a) seems to allow the court to reconsider on its own motion regardless of the 30 day limit provided the record has not been received.
    Also, 19(d)/Rule 25 has the good ole’ “good cause shown” clause.
    I don’t see why the AFCCA could not have reconsidered this case if there was good cause shown.

  2. (Former) ArmyTC says:

    I have to call foul on part of your premise here. The fact that his attorneys screwed up is unacceptable, but  you can’t argue with a straight face that his defense attorneys are government attorneys. They may get their paycheck from the same place that I do, but their obligation is to an individual client, not to the “government” as the prosecuting sovereign. How on earth 6 field grade officers screw up this bad, I don’t know. But those 6 field grade officers are not, by any means government attorneys. They are 6 senior appellate defense attorneys facing an ineffective assistance of counsel claim that they have no defense against.

  3. The Silver Fox says:

    This post is like an article from The Onion. 

  4. Zachary D Spilman says:

    My premise, (Former) ArmyTC, is that the issue before CAAF is entirely a product of a failure by the sovereign. The Air Force trained the counsel, certified the counsel, detailed the counsel, and supervises the counsel whose failure is at issue.

    I’m not convinced that LaBella should win on the jurisdictional question (because I see the possibility for some seriously screwy consequences). But I hope the Government’s presentation at oral argument is at least conciliatory to this Airman whom the system failed.

  5. stewie says:

    Zach, so then your analysis would change if he’d only/solely been represented by civilian DC? I think this is either an IAC issue, or a jurisdicitional issue.  Then again i strongly believe Rodriguez was wrongly decided.

  6. Zachary D Spilman says:

    I think the allocation of blame is less clear when there’s civilian counsel, stewie, though I note that the detailed counsel remains part of the case and is no potted plant.

  7. (Former) ArmyTC says:

    I don’t know…I think the question of blame is clear. The attorneys who failed to abide by their client’s wish (be they civilian or military) are to blame. The issue here is IAC and the appellant’s remedy is two-fold: 1) a petition for extraordinary relief (which the government should not contest), and 2) a complaint to the attorneys’ state bars for the RPC violations.

  8. DCGoneGalt says:

    I find this issue somewhat boring reading but this is on the appellate defense attorneys.  If the government fails to provide competent trial or appellate attorneys to an accused/appellant then it is a government problem.  Military accused/appellants get trained and competent counsel so that issue is irrelevant.  If there’s no good cause shown, and working through the issue to get to good cause is the easy way out of this pickle, then the appellant is SOL.

  9. stewie says:

    I don’t agree with formerArmyTC often, but I do in this case I think. It’s on the defense counsel. There is no evidence appellate defense counsel do not get proper training, quite the opposite. So if in this, or some other case, there is a problem with appellate DC performance, it’s no different of an analysis than if there were a problem with CDC performance.

  10. Annonymous says:

    I find it interesting that everyone is so quick to judge this situation.  Until you know how an appellate defense division runs, you have no room to judge how these attorney’s handled this case.  Not to mention, the Air Force Court lists every attorney who EVER appeared on behalf of the appellant even if that attorney only filed an enlargement of time or if that attorney was subsequently released by the CCA.  So to claim that ALL six attorneys failed him is absurd, the true failure is on the government for failing to adequately staff and detail counsel to the appellant (see Moreno) … and that is the government’s best argument in this case.

  11. RY says:

    I don’t get why this post and the comments assume the petition is tardy and there is blame to be passed.  The specified issue is whether the petition was tardy.  I think it is jumping the gun to assume the answer and jump to blamesmanship.  IMHO, it is quite possible there was no tardy petition here because it was filed within 60 days of the reconsideration.  The current rule is straight forward – you must file within 60 days of CCA decision or 60 days from the date of a timely reconsideration decision.  The only real issue here is how a belated reconsideration affects the 60-day court-created clock.  While it’s possible CAAF could stand hard and fast on the 60-day timeline, it would be more consistent with its traditional character to let “good cause” be the standard for exceptions and to trust the CCA’s to make that determination, as they did in this case.  It’s not a screwy resolution; good cause is the standard for many exceptions in criminal justice. 

  12. RY says:

    …typo in my previous post- I mean to wrote 60-day statutory clock rather than court-created. 

  13. Dew_Process says:

    @ RY – agree, but with a caveat. AF Appellate government has consistently refused to acknowledge that “equitable tolling” applies, which of course prior to Rodriguez it did under the rubric of “good cause.”  In the last 5 years, SCOTUS has decided a number of these case – both civil and criminal – where they have applied equitable tolling principles.
    The other point here is “waiver” (and I’m not familiar enough with the specific facts to argue that it does or doesn’t apply).  But, if after the Accused/Appellant filed his allegedly “untimely” request for reconsideration, if the government didn’t then assert a lack of jurisdiction, it would seem that not only have they waived that argument, but as you noted, “re-set the clock.”
    Has anyone had a chance yet to listen to the oral argument?

  14. Chuck Bass says:

    Judges did not seem inclined to overrule Rodriguez at oral argument.

  15. The Silver Fox says:

    Fast forward to 1:30:  
    That’s all of you.  

  16. DCGoneGalt says:

    Silver Fox:  The Government!!!   I thought you may have posted the Tenacious D song “The Government”.  It seems more fitting.

  17. Release says:

    The Appellant’s brief before CAAF makes clear that the CCA had released his previous lawyers and that, at the time the filing with CAAF was missed, his case was assigned to a lawyer who was not yet on-station.  Given those facts, I don’t think any of the lawyers who appear on the CCA’s decision – all of whom had been released by that court – are to blame for anything.  TJAG appears to have simply failed to detail Appellant assistance of counsel (despite the Appellant’s request for counsel) between the CCA decision and the CAAF petition coming due.

  18. Zachary D Spilman says:

    Your comment concludes that LaBella was totally unrepresented by detailed counsel at this crucial time, Release.

    You don’t think the senior lawyers identified in the CCAs opinions had a duty to ensure that LaBella wasn’t abandoned?

  19. Release says:

    What I know is that a Google search shows that the first lawyer mentioned in the CCA opinion as being Appellant’s counsel is apparently no longer in the service and, since 2012, has been a federal administrative law judge.  I also know that the Appellant’s brief says that the CCA released Appellant’s previous counsel.  I think counsel who has been released by the Court, especially when they’ve been released because they’re no longer working for the military, have no duty to ensure the government details replacement counsel.

  20. Zachary D Spilman says:

    I think counsel who has been released by the Court, especially when they’ve been released because they’re no longer working for the military, have no duty to ensure the government details replacement counsel.

    I think that’s a very fair statement. But I think the facts of this case are more complicated. 

    Ultimately, I think it undeniable that the Air Force failed this Airman. I also think it notable that the Government’s merits brief and its opposition to the amicus brief both decry paternalism in the military justice system. 

    It seems like a little paternalism is exactly what was needed here.