TDC are required to advise a client of their post-trial rights in the event of a conviction. That advice is by necessity general until it is known what the client is convicted of and what the sentence is. Regardless, a written acknowledgement of that advice is later part of the record of trial.
After trial the rights become known, and those can be better explained to the client.
When completing the appellate rights advice it is imperative the client be told to give a good contact address or information (even if it's a parent) where they can be contacted by appellate counsel. (Yes, quite a few might still be in the Brig serving at their majesty's pleasure and their physical location easily known.)
It is imperative the client be told over and over that they should keep any change of address current with the appropriate office or officials designated in the post-trial rights.
Why is this important?
Without current and accurate information, the appellate counsel will have difficulty talking to the appellant and forming an attorney-client relationship. As we know, counsel cannot effectively form an attorney-client relationship with the appellant or help them advance their appeal if there is no communication. That said, there are clients who fall off the map, something all appellate counsel experience have from time to time.
Let's say an appellate counsel is faced with the sitaution of a non-responsive (I'll call it that) appellant with a case pending an Article 66(c), UCMJ, review. Now what?
We know that the CCA has an obligation to thoroughly review the record, identify issues, and decide if those issues warrant relief. Grosty at 434. The case law makes it clear, however, that a brief from the Appellant's advocate is a necessary and important part of the review.
The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae. The no-merit letter and the procedure it triggers do not reach that dignity. Counsel should, and can with honor and without conflict, be of more assistance to his client and to the court. His role as advocate requires that he support his client's appeal to the best of his ability. Of courst, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court -- not counsel -- then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel's request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.
United States v. Grostefon, 12 M.J. 431, 433-34 (C.M.A. 1982) citing Anders v. California, 386 U.S. 738, 744 (1967). While Grosty and Anders talk about issues the appellant wants raised regardless of appellate counsel's professional opinion, the principle of effective advocacy applies to "meritorious" issues also, does it not. See, Evitts v. Lucey, 469 U.S. 387, 396-97 (1985); Diaz v. Judge Advocate General of the Navy, 59 M.J. 34, 37 (C.A.A.F. 2003); United States v. Adams, 59 M.J. 367, 370 (C.A.A.F. 2004).
This is all well and good when the appellant and appellate counsel are communicating. But what about the uncommunicative appellant, regardless of the reason for a lack of communication?
Does United States v. Harper, 80 M.J. 540 (N-M Ct. Crim. App. 2020) (Order) (with no petition to the CAAF), give us any guidance? NMCCA affirmed with a summary disposition in October. See also, United States v. Brown, NMCCA No. 202100042, 2021 CCA LEXIS 283 (N-M Ct. Crim. App. Jun. 10, 2021) (*I couldn't see this order on the NMCCA site); United States v. Stromer, NMCCA No. 201800320, 2020 CCA LEXIS 258 (N-M Ct. Crim. App.Aug. 7, 2020) (Order) (*I couldn't find the Order on the NMCCA site) aff'd United States v. Stromer, 2020 CCA LEXIS 471 (N-M Ct. Crim. App. Dec. 28, 2020).
Before we put all the onus on the courts and lawyers, look to the client's "role" in all of this. When there is a written motion to withdraw from an appeal--no problem. But what of the uncommunicative client? Are they noncommunicative out of choice, or because they haven't gotten the "Hi, I'm your appellate lawyer notice," or through some administrative failure? (And they are not in the Brig where it's easy to locate them and talk to them.) Does that make a difference? Should that make a difference? That shouldn't make a difference to the CCA because of duty to review. Is Harper good law for the appellate counsel who wants to withdraw or might CAAF give us Casey's variations on a theme by Harper and resolve any dissonance?
Cheers Phil Cave--now off to the bunker to hunker.
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