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
appellant’s
assignments of error, that broad mandate does not reduce the importance
of
adequate representation; where individual civilian counsel’s 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 appellant’s 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
court’s 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 appellant’s 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).
2006
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).
2004
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).
2003
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 counsel’s 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 client’s 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).