Actually, what to do is the subject of NMCCA's (published) Order in United States v. Harper, issued 26 June 2020.
Appellate clients sometimes "disappear." They've been placed on appellate leave and don't bother to keep their contact information up to date. That's a problem for appellate counsel who need to talk to the client. The client needs to know what issues will be raised and most importantly appellate counsel needs to know if there are any "Grosty" issues.
So, what to do when a client disappears?
Harper had been administratively discharged and couldn't be found by appellate counsel despite counsel's "due diligence." (Note this to be one of those cases where he got a BCD at trial, the BCD was approved, but "the bad-conduct discharge was suspended for six months and was thereafter remitted.")
"Based on the approved sentence, Appellant’s case is by statute subject to mandatory appellate review by this Court, which is empowered to “affirm only such findings of guilty and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved.” As Appellant has not affirmatively waived or withdrawn his case from such appeal, we continue to have jurisdiction to conduct the required review of this case."
NMCCA discusses why the Appellant had not withdrawn or waived appellate review despite his "disappearance." The decision is based on that rather turgid lawyerly thing we call an Acknowledgement of Appellate Rights.
An appellate right at a CCA includes the right to (effective) counsel. This is statutory and consistent with the Supreme Court in Evitts v. Lucey, 469 U.S. 387 (1985).
So, what is appellate counsel to do.
Here appellate counsel decided not to file a brief. Appellate counsel did however respond to issues specified by the court, but at no time did counsel seek to withdraw. One suspects the court would have denied withdrawal.
"Given these circumstances, particularly the lack of any affirmative action by Appellant either to waive his right to representation or to withdraw his case from appellate review, we conclude that appellate defense counsel not only has the authority, but is statutorily required to represent Appellant, to the best of her ability, notwithstanding her inability to locate or communicate with him. Such representation is an inherent aspect of the appellate review process Congress has mandated in Appellant’s case, which contemplates that Appellant’s best opportunity for a thorough, searching review is to have legal counsel championing his case.
While we understand appellate defense counsel’s hesitancy to represent Appellant without communicating with him, we agree with our two sister service courts who addressed this issue[.]"
The court engages in a lengthy discussion of the statutory and ethical responsibilities in this situation and ultimately concludes the Order with,
"[A]ppellate defense counsel shall continue with her representation of Appellant and file a Brief on his behalf no later than the 20 July 2020."
So, what is trial defense counsel to do? The teaching moment comes in several parts.
1. Make very sure you fully explain the role of the CCA--the client needs to understand in particular about "Grosty" (something I'm not sure, based on experience, trial defense counsel fully understand or fully explain). Yes, there are cases where, surprise, surprise, the court granted on a "Grosty," and the client got some relief.
2. Impress upon the client the need to stay in touch and keep the military updated on their whereabouts.
3. In your client file keep all the contact information you can including the clients cell phone number (yes, clients do get out of the Brig and still have their cell phone and "old" number), their parents/wife's phone number and address, and any email addresses (yes, clients get released from the Brig and use their "old" email address. Maybe one of your sentencing witnesses can lead you to their old friend from home. Help out your buddy the appellate counsel in their being able to track down the client. Of counrse if they are off to the Big House (USDB) I appreciate that's not such a problem.
Oh, what a to-do, so keep calm and carry on. Cheers!
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