U.S. v. Roach, 66 M.J. 410

Military Justice Personnel: Defense Function: Appellate Counsel

1. 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
2. if an accused becomes unreasonable in his demands, he may forfeit his right to any appellate assistance by counsel
3. 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
4. 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
5. 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
6. 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
7. 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
8. 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
9. 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
10. 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
11. 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
12. 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

Trial Stages: Appeals: Generally

1. 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
2. if an accused becomes unreasonable in his demands, he may forfeit his right to any appellate assistance by counsel
3. 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
4. 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
5. 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
6. 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
7. 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
8. 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
9. 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
10. 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
11. 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
12. 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

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. appellate review in the courts of criminal appeals embodies the traditional affirmative responsibility of military reviewing authorities to conduct mandatory, de novo review of court-martial proceedings
2. proceedings in the courts of criminal appeals differ from civilian appeals in three significant respects; first, review is mandatory; the Judge Advocate General must submit each case of the type at issue in the present appeal to the court unless the accused affirmatively waives the appeal; second, the Judge Advocate General must provide government-furnished appellate counsel to the accused, regardless of indigence, on request of the accused, or when the government is represented on appeal by counsel; third, the scope of review by the courts of criminal appeals differs in significant respect from direct review in the civilian federal appellate courts; in addition to reviewing the case for legal error in a manner similar to other appellate courts, Congress has provided the courts of criminal appeals with plenary, de novo power of review and the ability to determine, on the basis of the entire record which findings and sentence should be approved; in that regard, the court conducts a de novo review under Article 66(c) of the facts as part of its responsibility to make an affirmative determination as to whether the evidence provides proof of appellant’s guilt of each offense beyond a reasonable doubt; the court also conducts a de novo review of the sentence under Article 66(c) as part of its responsibility to make an affirmative determination as to sentence appropriateness
3. 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
4. if an accused becomes unreasonable in his demands, he may forfeit his right to any appellate assistance by counsel
5. 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
6. 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
7. 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
8. 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
9. 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 the appellant on a pro bono basis
10. 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
11. 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
12. 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
13. 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
14. 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

Trial Stages: Appeals: Scope of Review

1. in addition to reviewing the case for legal error in a manner similar to other appellate courts, Congress has provided the courts of criminal appeals with plenary, de novo power of review and the ability to determine, on the basis of the entire record which findings and sentence should be approved; in that regard, the court conducts a de novo review under Article 66(c) of the facts as part of its responsibility to make an affirmative determination as to whether the evidence provides proof of appellant’s guilt of each offense beyond a reasonable doubt; the court also conducts a de novo review of the sentence under Article 66(c) as part of its responsibility to make an affirmative determination as to sentence appropriateness