CAAF’s daily journal has this entry from yesterday:

No. 16-0091/AR. U.S. v. Djoulou K. Caldwell. CCA 20140425.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue personally asserted by Appellant:

WHETHER THE MILITARY JUDGE COMMITTED PLAIN ERROR WHEN HE INSTRUCTED THE PANEL USING A NEGLIGENCE STANDARD FOR MALTREATMENT OF A SUBORDINATE IN VIOLATION OF ARTICLE 93.

Briefs will be filed under Rule 25.

(emphasis added). The right of an appellant to personally assert an error was solidified in United States v. Grostefon, 12 M.J. 431, 436-437 (C.M.A. 1982), in which the court held that a detailed appellate defense counsel must inform the military appellate courts of any issues raised by an appellant, even if the counsel believes they are frivolous:

Henceforth, we will require that when the accused specifies error in his request for appellate representation or in some other form, the appellate defense counsel will, at a minimum, invite the attention of the Court of Military Review to those issues and, in its decision, the Court of Military Review will, at a minimum, acknowledge that it has considered those issues enumerated by the accused and its disposition of them. If the Court of Military Review decides that the issues have no merit, appellate defense counsel will so notify the accused and make his recommendations as to whether the accused should petition for further review to this Court and of his recommendations as to submission of the same issues. Unless the accused consents to withdrawal or abandonment of the issues before this Court, appellate defense counsel will, in the petition for review, identify the issues. If the accused wishes to withdraw the issues, or change or modify them, appellate defense counsel will so state in the petition. Of course, this in no way prevents or discourages appellate defense counsel from submitting briefs and arguments on those issues which, in his professional judgment, have arguable merit. However, in no case will the issues submitted by the accused be ignored without evidence of the accused’s concurrence in that decision.

I’m not sure when CAAF last considered an issue raised personally by an appellant at CAAF, however the court has recently considered issues raised personally by an appellant at a CCA, such as in  United States v. Rose, 71 M.J. 138 (C.A.A.F. May 24, 2012) (CAAFlog case page), and United States v. King, 71 M.J. 50 (C.A.A.F. Mar. 13, 2012) (CAAFlog case page).

Notably, in Caldwell, there doesn’t appear to be a decision on the Army CCA’s website (that implies that it was summarily affirmed).

One Response to “CAAF grants review of a Grostefon issue”

  1. Charlie Gittins says:

    In US v. McConnell, 55 M.J. 479 (CAAF 2001) I was hired after the appellant had exhausted his AFCCA appeal.  I drafted an IAC Grostefon for the client because IAC had not been raised at AFCCA and based on the Grostefon submission, CAAF ordered a DuBay hearing.  The IAC claim was denied, but the civilian defense counsel was named in the opinion, which suggested to me that CAAF was unimpressed with the performance, although they were not willing to call it IAC.