U.S. v. Moss, 73 M.J. 64

Military Justice Personnel: Defense Function: Generally

1. an accused has the ultimate authority to determine whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal
2. the decision whether to take an appeal to an appellate court is personal to an appellant
3. appellant did not authorize an appeal to the CAAF when she signed a pretrial rights advisement that advised her that she could petition the CAAF for review after the CCA had completed its review; the rights advisement simply informed her that if her conviction was affirmed by the CCA, she had the discretion to appeal to the CAAF and the Supreme Court, and if she chose to do so she had the same right to counsel before those courts as she did before the CCA; the language concerning a possible appeal to the CAAF was informative only, and appellant’s exercise of her right to counsel before the CCA cannot be construed to authorize a subsequent appeal to either the CAAF or the Supreme Court
4. once an attorney-client relationship is established, it must continue until terminated
5. if an accused is not available and cannot be located within the time provided to file a petition for review before the CAAF, appellate defense counsel can and should proceed in accordance with the authority previously given by the accused and file such proceedings as may be necessary to protect the interests of his client; if the accused only indicated a desire to be represented by appellate defense counsel before the CCA, the attorney-client relationship is limited to representation before the CCA

Military Justice Personnel: Defense Function: Responsibilities

1. an accused has the ultimate authority to determine whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal
2. the decision whether to take an appeal to an appellate court is personal to an appellant
3. appellant did not authorize an appeal to the CAAF when she signed a pretrial rights advisement that advised her that she could petition the CAAF for review after the CCA had completed its review; the rights advisement simply informed her that if her conviction was affirmed by the CCA, she had the discretion to appeal to the CAAF and the Supreme Court, and if she chose to do so she had the same right to counsel before those courts as she did before the CCA; the language concerning a possible appeal to the CAAF was informative only, and appellant’s exercise of her right to counsel before the CCA cannot be construed to authorize a subsequent appeal to either the CAAF or the Supreme Court
4. once an attorney-client relationship is established, it must continue until terminated
5. if an accused is not available and cannot be located within the time provided to file a petition for review before the CAAF, appellate defense counsel can and should proceed in accordance with the authority previously given by the accused and file such proceedings as may be necessary to protect the interests of his client; if the accused only indicated a desire to be represented by appellate defense counsel before the CCA, the attorney-client relationship is limited to representation before the CCA

Trial Stages: Merits: Guilty Pleas

1. an accused has the ultimate authority to determine whether to plead guilty

Trial Stages: Merits: Trial Procedures › Generally

1. an accused has the ultimate authority to determine whether to waive a jury
2. an accused has the ultimate authority to determine whether to testify in his or her own behalf

Trial Stages: Merits: Trial Procedures › Forum election

1. an accused has the ultimate authority to determine whether to waive a jury

Trial Stages: Appeals: Generally

1. the decision whether to take an appeal to an appellate court is personal to an appellant

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. the decision whether to take an appeal to an appellate court is personal to an appellant

Trial Stages: Appeals: Court of Appeals for the Armed Forces

1. the decision whether to take an appeal to an appellate court is personal to an appellant
2. appellant did not authorize an appeal to the CAAF when she signed a pretrial rights advisement that advised her that she could petition the CAAF for review after the CCA had completed its review; the rights advisement simply informed her that if her conviction was affirmed by the CCA, she had the discretion to appeal to the CAAF and the Supreme Court, and if she chose to do so she had the same right to counsel before those courts as she did before the CCA; the language concerning a possible appeal to the CAAF was informative only, and appellant’s exercise of her right to counsel before the CCA cannot be construed to authorize a subsequent appeal to either the CAAF or the Supreme Court
3. if an accused is not available and cannot be located within the time provided to file a petition for review before the CAAF, appellate defense counsel can and should proceed in accordance with the authority previously given by the accused and file such proceedings as may be necessary to protect the interests of his client; if the accused only indicated a desire to be represented by appellate defense counsel before the CCA, the attorney-client relationship is limited to representation before the CCA
4. because the decision to appeal to the CAAF must be made by appellant, where the record does not reflect that appellant authorized such an appeal, the CAAF lacks statutory jurisdiction and the appeal must be dismissed

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. whether the personal authorization of an appellant is required to appeal to an appellate court is a legal issue which the appellate court reviews de novo
2. where all of the evidence relating to whether appellant personally authorized an appeal is in the record and is not disputed, the issue before the court necessarily reduces to a question of law

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: Generally

1. ordinarily, “may” is a permissive rather than a mandatory term