New CAAF grants — Court-Martial Trial Practice Blog

Here are a couple of CAAF grants of immediate interest to trial practitioners.

No. 08-0808/AR. U.S. v. Derand M. DAVIS. CCA 20070808 (couldn't see this on the Army public website). Review granted on the following issue:

WHETHER TRIAL DEFENSE COUNSEL PROVIDED, TO THE SUBSTANTIAL PREJUDICE OF APPELLANT, INEFFECTIVE ASSISTANCE OF COUNSEL IN THE POST-TRIAL PHASE WHEN HE, WITHOUT CONSULTING WITH APPELLANT, SUBMITTED MATTERS TO THE CONVENING AUTHORITY BUT FAILED TO SUBMIT APPELLANT'S PERSONAL STATEMENT.

CAAF has ordered a remand so that the trial defense counsel can provide an affidavit giving reasons, if any, why the client's personal statement was not provided the convening authority and why that was not discussed with the client. From experience I'm aware that client's (and their family members) can provide some really awful clemency request letters that are counter-productive at the clemency stage. By awful I mean that they are critical of the judge, personal attacks on the convening authority, the military, etc., you know what I mean, you've seen them. When you review these letters it's clear that they will offend the convening authority in such a way that there's no chance of clemency. In such a situation you've got to convince the writer to re-write in such a way that they can still express their ideas, but in a way that might persuade the convening authority to grant clemency. Part of my view is that Grostefon doesn't exactly apply at the clemency stage of the case. So far I have been lucky. But I can conceive of a case where a reasonable professional judgement is that you not submit the client's personal letter (if they refuse to rewrite it), and that you find other ways for the client's personal requests to be submitted. The operative words for me in the grant above are "without consulting with appellant."

Here is the second grant of interest with a link to the lower court opinion.

No. 09-0043/AR. U.S. v. Neil S. LUBASKY. CCA 20020924. Review granted on the following issues:

WHETHER APPELLANT COMMITTED LARCENIES OF M.S.'S PROPERTY BY ENGAGING IN THE UNAUTHORIZED USE OF HER CREDIT, DEBIT, AND ATM CARDS.

WHETHER A VARIANCE AS TO OWNERSHIP IN LARCENY CASES IS FATAL IF THERE IS LEGALLY SUFFICIENT EVIDENCE THAT APPELLANT STILL COMMITTED A LARCENY OF PROPERTY.