19 February 2009
Memorandum for the Clerk of Court and Rules Committee
Subject: Proposed New Rule for Grostefon Submissions
Encl: (1) Central Legal Staff
(2) Draft Rule 21A
1. Introduction - United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982) required appellate defense counsel to identify
those issues to the service courts and the Court of Appeals for
the Armed Forces which the appellant desires to have considered,
even when counsel does not believe such an issue has sufficient
merit to be assigned as error. In view of the wide variety of
Grostefon submissions reviewed by the Central Legal Staff (CLS)
and the Court, as well as the confusing and burdensome filings
in a few cases, it is appropriate to consider providing formal
guidance to appellate defense counsel. With that in mind, this
memo recommends that the clerk of court and the Court’s Rules
Advisory Committee consider a new rule that would primarily:
(1) impose a page limit on Grostefon submissions; and
(2) provide a sample format for Grostefon submissions.
2. Need for New Rule – Since the Grostefon decision was issued
more than 25 years ago, there has been much confusion among
appellate defense counsel and the service courts over its
meaning and implementation. The first acknowledgment of such
confusion by one of the judges of this Court appeared in United
States v. Rainey, 13 M.J. 462 (C.M.A. 1982)(summary
disposition). Chief Judge Everett remarked:
In connection with our Court's recent Homer Ferguson
Conference and otherwise, it has become apparent to me
that in some quarters there has been a massive
misunderstanding of the Grostefon case. Apparently,
some appellate judges have construed Grostefon as
imposing a requirement that they recite verbatim in
their opinions the errors that were assigned by the
accused or by his trial defense counsel. I find
nothing in Judge Cook's opinion in Grostefon -- in
which I fully concurred -- which requires such an
exercise or even the enumeration of the claims made by
an accused. A statement that all claims of error
advanced by the accused have been considered should
suffice, unless, of course, the particular error
merits some discussion in its own right.
Likewise, some appellate defense counsel seem to have
expanded unnecessarily the duties to which Grostefon
subjects them. The majority opinion in that case did
not require that appellate defense counsel brief
extensively every claim of error which had been noted
by an accused or by his trial defense counsel.
Instead, it only demanded that, unless authorized to
the contrary by his client, appellate defense counsel
call each claim to the attention of the Court of
Military Review and, if the accused petitions for
review, of our Court.
Id. at 463 n.1 (Everett, C.J., dissenting)(emphasis added); see
also United States v. Arroyo, 17 M.J. 224, 226 (C.M.A. 1984)
(clarifying Grostefon requirements).
In United States v. Knight, 15 M.J. 202 (C.M.A. 1983),
Judge Cook explained that Grostefon prescribed,
a "rule of practice" which required, at a minimum,
that when an accused specifies any error in his
request for appellate representation or in some other
form, the appellate defense counsel will invite the
attention of the Court of Military Review to those
issues, and the Court of Military Review will
acknowledge specifically that it has considered and
disposed of those issues. We did not ground our
decision either on the Constitution or on the decision
in Anders v. California, 386 U.S. 738, 87 S. Ct. 1396,
18 L. Ed. 2d 493 (1967), but upon the responsibilities
of appellate counsel and courts as set out in Articles
66 and 70 of the Uniform Code of Military Justice, 10
U.S.C. §§ 866 and 870, respectively; see also para.
102b, Manual, supra. In addition, we followed the
practice of examining the issues not advanced by
appellate counsel in those cases docketed on the
Grostefon issue to determine if they merited "our
corrective action." 12 M.J. at 437.
Id. at 204.
More recently, this Court found it necessary to reiterate
and clarify the rule of practice established by Grostefon. In
United States v. Fagan, 59 M.J. 238 (C.A.A.F. 2004), a unanimous
court reversed the lower court decision which highlighted
“‘problems’ presented by [United States v. Ginn, 47 M.J. 236
(C.A.A.F. 1997)] framework that are compounded by [Grostefon].
Citing Knight, this Court repeated the basic Grostefon rules for
counsel and the service courts.
Currently, the CLS and this Court see a wide variety of
Grostefon submissions in terms of format, content, and length.
Some submissions abide by the rules of practice established by
Grostefon and clarified by the decisions noted above. But, a
significant number of submissions present to this Court a
jumbled mishmash of rambling narrative. In such a case, it is
clear that appellate defense counsel has shirked his duty under
Grostefon to identify the issues and list those issues in an
organized form. Other submissions go on and on, repeating the
same complaints over and over. It is not uncommon to see
Grostefon submissions exceeding 50 pages, and worse. Again, it
is obvious that counsel has done nothing to sift through the
pile of paper, but simply dumped it upon this Court.
While such Grostefon submissions certainly burden the CLS
and the Court, the real danger lies in the prejudice suffered by
the appellant. Simply put, if appellate defense counsel does
not identify and clearly articulate the issue his client desires
to submit, that client cannot rely on the CLS to accomplish that
task.1 That is particularly true when the staff attorney is
forced to sift through a pile of paper bereft of any
organization. As one example, consider pages 1-4 and 25-30 of
enclosure (1), a recent CLS petition memo submitted by Mr.
In the spirit of Grostefon, the military appellant would
greatly benefit by a concise, cogent identification and listing
of issues by his counsel. In turn, counsel would benefit by
more complete guidance by this Court in its Rules of Practice
and Procedure. As will be seen below, in their present form,
the Rules give little guidance of any kind.
3. Current Rule References to Grostefon – The Court’s Rules of
Practice and Procedure make only one reference to Grostefon:
a. Rule 19(a)(5)(c) – Permits filing of Grostefon issues
by motion not later than 30 days following the
supplement, if not raised earlier.
In many cases, the staff attorney will identify and analyze each and every
issue carrying even the slightest hint of merit, but that attorney has not
had the benefit of confidential communication with the client and every other
advantage of an attorney-client relationship. Thus, the staff attorney is
handicapped from the outset of his work on the case.
Thus, unlike rules for the petition for grant of review (CAAF
Rule 20), supplement (CAAF Rule 21), brief on the merits (CAAF
Rule 24), and other pleadings (CAAF Rules 22, 23, 27, 28, and
32), there is no guidance on the format counsel should use in
identifying Grostefon issues. Moreover, unlike rules for some
of those pleadings, there is no limitation on the page or word
count of Grostefon submissions.
4. Draft Rule – Enclosure (2) is a draft rule submitted to the
Rules Advisory Committee for its consideration. Since Grostefon
submissions are normally filed as part of the supplement to the
petition for grant of review (CAAF Rule 21), this draft is
proposed as CAAF Rule 21A.