MILITARY JUSTICE PERSONNEL: Defense Function: Appellate Counsel                    

2017 (October Term)

United States v. Hennis, 77 M.J. 7 (CAAF lacks constitutional, statutory, or regulatory authority to provide appellant with appointment of appellate defense team members pursuant to the Army’s capital litigation regulation, or with funding for learned counsel, a mitigation specialist, or a fact investigator). 

(CAAF does not have the authority to mandate the appointment of an appellate defense team pursuant to the provisions of the Army’s capital litigation regulation which are hortatory, rather than mandatory and do not create a binding right). 

(the Army’s capital litigation regulation provides a guideline for the appointment of a suggested trial defense team, not a suggested appellate defense team, and by its own terms is hortatory, rather than mandatory and thus does not create a binding right).

(CAAF does not have the authority to mandate funding for learned appellate counsel in this capital case; there currently is no requirement for the appointment of learned counsel knowledgeable in the law applicable to capital cases in military capital cases). 

2008 (Transition)


United States v. Roach, 66 M.J. 410 (the responsibility for appointing appellate counsel rests with the Judge Advocate General under Article 70, UCMJ, but the authority to control the case rests with the courts of criminal appeals). 


(if an accused becomes unreasonable in his demands, he may forfeit his right to any appellate assistance by counsel). 


(a court of criminal appeals has a number of options in the event of disagreement between counsel and client, including:  (1) direction for both client and counsel to separately file their assignments of error; and (2) a requirement for the Judge Advocate General to appoint substitute counsel as a predicate to further appellate proceedings).


(if the accused unreasonably refuses to proceed with assigned or substitute counsel, the court of criminal appeals should stay the proceedings for a period adequate to allow service upon the accused of the order permitting counsel to withdraw, and giving him sufficient time to meet the new situation; in the order releasing counsel, there should be included a notice that different military counsel will not be made available to accused and he must either represent himself or obtain civilian counsel). 


(although courts of criminal appeals have a broad mandate to review the record of trial unconstrained by appellantís assignments of error, that broad mandate does not reduce the importance of adequate representation; where individual civilian counselís failure to act is working to the detriment of an appellant, military appellate counsel may not stand by idly, because they remain responsible for protecting the interests of their client; as officers of the court as well as appellate defense counsel, military counsel have an obligation to comply with court orders and protect the interests of their client; in that regard, military appellate counsel can pursue a number of options to fulfill their obligations to the court and their client in the event that civilian counsel does not make a timely filing; each of these options would provide the court with a filing on the merits, including the appellantís views, the position of military appellate defense counsel, and pertinent explanatory material regarding the posture of the case). 


(where a court of criminal appeals does nothing to enforce its order that military defense counsel file an assignment of merits by a date certain, it errs in deciding the case without assistance of counsel and denies appellant the assistance of counsel guaranteed by Article 70 and the plenary review contemplated by Article 66). 


(courts of criminal appeals have broad powers to issue orders to counsel to ensure the timely progress of cases reviewed under Article 66; such actions must be taken in a manner consistent with the requirements of Article 70, UCMJ; when counsel appears to be unresponsive, the court has a variety of actions it may take, including:  (1) holding a status conference with the parties to inquire into the reason for the delay in filing; (2) ordering appellate defense counsel to show cause as to why they could not file their brief on time; (3) warning counsel that flagrant disregard of the courtís rules for timely filing of briefs could result in suspension or disbarment from practice before the court; (4) asking the Judge Advocate General to direct the assignment of additional or substitute counsel; or (5) appointing another member of the bar to represent appellant on a pro bono basis). 


(when appellant has requested representation on appeal that does not appear to be forthcoming, a court of criminal appeals must ensure that military counsel are performing their primary obligation to comply with court orders and protect the interests of the client).


(if the court of criminal appeals determines that circumstances warrant proceeding without a brief filed by appointed military appellate counsel, the court must first provide adequate notice to appellant so that appellant can determine whether to request substitute counsel under Article 70, obtain civilian counsel at the appellantís expense, or waive the right to counsel and proceed pro se). 


(where appellate defense counsel made multiple requests for extension of time and those filings raised substantive issues of concern, the court of criminal appeals erred in presuming a merits submission and in not providing notice to appellant and giving appellant a reasonable opportunity to proceed in an alternative fashion with substitute counsel, retained counsel, or pro se). 


(even when difficulties in the relationship between Article 70 counsel and appellant may be attributable to appellant, appellant must still be given a reasonable opportunity to proceed in an alternative fashion with substitute counsel, retained counsel, or pro se). 


(courts of criminal appeals may set and enforce deadlines; if a court of criminal appeals encounters multiple requests for extension of time by appellate defense counsel, it should determine the nature of the problem, ensure that appellant understands the available options, and take appropriate action, including requiring that the Judge Advocate General appoint additional or substitute counsel if necessary). 



United States v. Miller, 63 M.J. 452 (appellate defense counsel must comply with the fundamental duty to communicate effectively with the client; however, in the military justice system, there is a special duty of the appellate defense counsel to afford an accused the opportunity to raise issues; appellate defense counsel must not only communicate with an appellant but must identify to an appellate court those issues the appellant wishes to present). 




United States v. Adams, 59 MJ 367 (an appellant has the right to representation before the CCA by both detailed military and civilian counsel; in cases where the appellant is represented by both, the civilian counsel normally exercises the responsibilities of lead counsel for the defense).


United States v. Dorman, 58 MJ 295 (individuals accused of crime shall have the assistance of counsel for their defense through completion of their appeal; this right includes the right to the effective assistance of counsel on appeal).

(pursuant to trial defense counselís continuing obligation to the client and the corresponding duty of confidentiality, we hold that trial defense counsel must, upon request, supply appellate defense counsel with the case file, but only after receiving the clientís written release).

Diaz v. The Judge Advocate General of the Navy, 59 MJ 34 (an accused has the right to effective representation by counsel through the entire period of review following trial, including representation before the Court of Criminal Appeals and our Court by appellate counsel appointed under Article 70, UCMJ).

(Article 70(a), UCMJ, places the responsibility for detailing appellate counsel on the government; if an onerous caseload hinders the timely processing of appeals or infringes on the effective assistance of counsel, then it is the government, not an appellant, who bears the responsibility to take corrective action).

(the standards for representation of service members by military or civilian counsel in military appellate proceedings are identical; in addition, the duty of diligent representation owed by detailed military counsel to service members is no less than the duty of public defenders to indigent civilians).

United States v. Brunson, 59 MJ 41 (CAAF Rule 30(a) requires that motions contain the factual or legal grounds for requesting relief; "administrative oversight" is merely a conclusion that provides neither a factual nor a legal basis for the relief sought).

(appellate practitioners should be on notice that this Court will not countenance further disregard of the Rules of Court and case law; in so ruling, this Court emphasizes that disregard for the Rules besmirches the image of military justice; this Court does not condone disregard of the Rules by accepting late filings when the delay seems to be the result of neglect and carelessness, and it shall consider appropriate sanctions in the event of flagrant or repeated disregard of the Rules).

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