CAAF will sit for the final time this term next week. Yet, of all the cases it heard this term, only seven opinions have been published. CAAF does not impose a June deadline, as the Supreme Court does, but experienced courtwatchers say it is rare for a large number of opinions to be released after June. What's to explain the backlog? Fractured court? A = Author, D = Dissent, C/D = Concur/Dissent, X = in the majority for last season's opinions. Compare this with the CAAF Annual Report 2023, which includes 19 additional Ex Writs without a written opinion. When appellants and their families ask, "How long will this take?" Look at the charts beginning on page 13.
Has your license to practice law been suspended or otherwise restricted? It probably doesn't matter for court-martial purposes, but it might be good to know. United States v. CistiSeptember 2020, Captain (Capt) CP is certified under Article 27(b). 15 March 2021, Capt CP's state bar suspended him (for reasons unwritten). 29 November 2021, Capt CP administered the oath to the Appellant’s commander when charges were preferred. 19 January 2022 Capt CP represents the government at the Appellant's Article 32. In March 2022, the SJA discovered the problem, and Capt CP was removed from legal duties, but no action was taken to revoke his 27(b) certification. (The unstated assumption is that Capt CP had forgotten to inform his supervisors of this suspension.) The MJ denies a defense motion to dismiss based because an attorney “must be both qualified and designated” as a judge advocate in order to perform judge advocate functions, and when Capt CP had lost his standing to practice law in March 2021 he was no longer qualified to serve as a judge advocate. Therefore, the Defense reasoned, Capt CP was not eligible to administer the oath to Lt Col P in November 2021, nor to represent the Government at the preliminary hearing in January 2022, and the Charge and specifications should be dismissed. In response, the Government contended that because Capt CP’s designation as a judge advocate had not been withdrawn, he remained eligible both to administer the oath to Lt Col P and to represent the Government at the preliminary hearing. AFCCA finds no fault with the MJ's ruling because TJAG is the only person who can revoke the certification, which had not been done even at the time of trial. The court does not cite the United States v. x, , by NMCCA, which decides similarly when it comes to a military judge. But it appears there is a small Capt CP trailer park. As I was writing this, a new FR notice came across the transom of proposed DoN changes to the RRP. This notice of appearance must: (a) State the jurisdiction(s) in which they are licensed and eligible to practice law, (b) Certify that they are in good standing with each jurisdiction, (c) Certify that they are not subject to any order disbarring, suspending, or otherwise restricting them in the practice of law, and Perhaps a change would be for the services to require military counsel to also file a notice of appearance in each case, as does the U.S. Attorney in federal court, rather than the current practice.
United States v. ClarkDeadlines are real. Appellant requests this court set aside the findings where the military judge denied appellant's motion to compel a witness due to untimeliness. Where trial defense counsel filed the motion after the entry of pleas and after the deadline set by the pretrial order, we find the military judge did not abuse his discretion in determining defense failed to show good cause to file the motion out of time and affirm. The MJ focused on the justification for the delay in filing the motion, and did not address the government's additional objection of relevance and cumulativeness. Essentially, The MJ likely found and ACCA found the defense was dilatory. The possibility of IAC was not before the court. While the defense proffered a timeline, the timeline did not elucidate what steps defense took to investigate Mr. Us location prior to their private investigator contacting him on 9 June 2022, which was two days after the motions deadline, five months after the court's issue of the pretrial order, and ten months after preferral of the original charges, was not a surprise witness—someone defense had just discovered. Mr. El wrote his lengthy statement in March of the previous year and defense listed him as a witness on their initial request as y as 15 March 2022.3 The defense stated they were investigating Mr. s information from 1 April until 9 June but provided no more details about the actions they took to locate MrAduring those two months, or when they hired the private investigator, or what other hurdles their due diligence failed to overcome. MILITARY JUSTICE Actions Needed to Help Ensure Success of Judge Advocate Career Reforms. Report to the Committee on Armed Services, House of Representatives, U.S. GAO, May 2024. Senior officials from each service also raised concerns about the newly established Office of Special Trial Counsel (OSTC) and the likelihood that it will exacerbate issues of inexperience within certain litigation positions. Generally, judge advocates are expected to become eligible for assignment to the OSTC after 2 to 4 years of litigation experience. OSTC experience standards, coupled with the limited number of litigators who meet these requirements, will likely force the services to rely on inexperienced litigators to serve as defense counsel or other positions that lack similar requirements. Further, these officials stated that the focus on OSTC experience standards could lead to a potentially significant imbalance in the experience levels of defense and prosecution assigned to litigate the same case. |
Disclaimer: Posts are the authors' personal opinions and do not reflect the position of any organization or government agency.
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