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.