Appellate Law

CAAFlog discussion on IAC, appellate practice, and cert. grants

By S. COTUS

Amongst those that represent soldiers that lacked the social skills not the be court martialed, there is an ongoing discussion of the question of whether a refusal by defense counsel to file a cert. petition constitutes ineffective assistance.

Now, in military law there are a couple of other dynamics in play.

• Counsel can and must raise any issue that the defendant wants him to before the trial judge, the service courts of appeal, and the CAAF.  United States v. Grostefon, 12 MJ 431 (CMA 1982).  Obviously the Supremes don?t see things this way, and most Courts of Appeal do not, either.
• As a practical matter whenever defense counsel is part of a larger institution (that is, one devoted to providing defense counsel) a different kind of thought goes into whether cert. should be sought.  It isn?t just about a given defendant.  Instead, the institution thinks about whether its overall position will be advanced.  After all, should the Supreme Grant cert. on a bummer of a case it may set the course of criminal justice back 100 years, because I am pretty sure that at least one Supreme Court justice thinks that ?gentle rape? of a suspect is an acceptable form of interrogation technique.

Full post as published by Appellate Law and Practice on August 20, 2008 (boomark / email).