Post-trial Counseling to the Client

The judge raps the gavel and announces that, “this court is adjourned.” Now what? That happened to Gunnery Sergeant Rodriguez years ago.

BLUF — Rodriguez loses because his petition was filed 14 days too late.

You’ve been through the pro-forma signing of the appellate rights statement. Now what? Most don’t have any appellate experience so it’s hard to do more than flip back to the appellate rights statement and make sure they “understand it.” But the client wants to know about their appeal. What can you say? There’s a lot, but you don’t know what it is.

Here’s something you must tell, retell, and emphasize to the client — STAY IN CONSTANT TOUCH with your appellate lawyer, make sure the administrative people and your appellate lawyer have an accurate address and phone number, and an email address (if not in the Brig).

The Court of Appeals for the Armed Forces today (6 January 2009) published their decision in United States v. Rodriguez, ten and a half years after he was first convicted. Gunnery Sergeant Rodriguez was first convicted in November 1998. NMCCA decided his first appeal in 2002 and granted a rehearing. A rehearing was held and he got back in the appellate sausage machine. In it’s July 2007 decision NMCCA affirmed his “new” conviction and sentence. That opened the way for Rodriguez to petition to the C.A.A.F. The current case is all about what happens when that petition for appeal to C.A.A.F. is not filed in time. Rodriguez loses because his petition was filed 14 days too late. No need to hash the reasons why here, our pointers are directed to the trial lawyer. You can visit CAAFLog for some of that pontificating.

For the trial lawyer the lesson is to bug the client to stay in touch with his or her appellate lawyer. Put it on your checklist if you have to. Make sure you remind the client when you submit their 11o5. The practice in the appellate shops is to write the client a “Hi, I’m your lawyer letter.” Tell the client to follow-up on that letter and stay on top of the case. I will tell you from my years of (active duty) appellate experience many clients just don’t stay in touch. Oh they’ll stay in touch with a civilian counsel, but for some reason don’t do that as much with military appellate counsel.

And don’t forget United States v. Palenius, 2 M.J. 86 (C.M.A. 1977). Check out CAAFLog’s Palenius’s Platitude.