Sunday, December 31, 2006

New published Navy-Marine Corps case: the Battle of New Orleans part deux

The Navy-Marine Corps Court has now put its December decisions on its web site. Included in this December batch are three published opinions. We have already looked at the first two, Pflueger and Tingler. The third is United States v. Adams, __ M.J. ___, No. 200600767, 2006 CCA LEXIS 332 (N-M. Ct. Crim. App. 2006). Adams is a published case despite the fact that its address on the NMCCA web site ends in "UNPUB.doc" and is a Navy-Marine Corps Court case despite the fact that its LEXIS "Copy w/cite" citation tells you it was decided by the Air Force Court, a problem previously discussed here.

It appears that the Navy-Marine Corps Court has now brought its web site up-to-date. We understand from LCDR Truax that the Coast Guard Court's web site is always within one working day of being up-to-date. The most recent opinion on the ACCA web site is from 22 December, indicating that as usual it is running in real time or near real time. CAAF's web site puts up opinions the day they are issued and has recently been running only one working day behind on the Daily Journal -- a considerable improvement from past practice. Hhhhmmmm, that leaves out only one military appellate court web site. Who might that be?

NMCCA's Adams opinion is a 16-page opinion written by Senior Judge Wagner, who is joined by Judges Vincent and Stone. It takes on the unenviable task of explaining why no relief is warranted even though more than FIVE YEARS passed between sentencing and docketing of the case at NMCCA, 1,666 days of which occurred after the CA had already acted.

A major reason for the lengthy published opinion appears to be its recommendation that CAAF reconsider the triggering mechanism for a due process post-trial delay analysis. The opinion criticizes CAAF for "establish[ing] a threshold requirement that is considerably lower than the standard established in Barker." 2006 CCA LEXIS 332, at *14. But NMCCA acknowledges that "[d]espite our reservations regarding the application of such a sweeping threshold standard, since our superior court has adopted the Smith threshold standard and being bound by the precedential holdings of our superior court, we must apply that standard in this case." Id. at *16. But the court also "encourage[s] reconsideration by our superior court of the threshold standard triggering application of a due process analysis." Id. at *16-*17.

In reading this portion of NMCCA's opinion, I wondered whether the court was writing with an audience of the two new CAAF judges in mind. Is NMCCA attempting to influence their thinking about the post-trial delay issue?

The Navy-Marine Corps Court ultimately concludes that there was a due process violation, beating the goverment about the head and shoulders along the way, e.g., "The failure of the Government in the case to at least put in a minimal effort in providing some reason for the extensive delay in delivering this record to the court is unconscionable." Id. at *20, n.8. Yet, at the end of the opinion, NMCCA holds that despite the due process violation, it would not grant relief. Nor would NMCCA use its Article 66(c) sentence appropriateness authority to reduce the sentence.

One aspect of NMCCA's reasoning seems peculiar. In its sentence appropriateness analysis, the court says that the "crimes of which the appellant stands convicted are serious and certainly deserving of harsh punishment." Id. at *34. Yet the opinion tells us that SSgt Adams was convicted of "unauthorized absence, dereliction of duty, and five specifications of wrongful appropriation." Id. at *1. Maybe there is some reason NMCCA didn't share with us that explains why these particular Article 86, 92, and 121 offenses were more ghastly than the norm, but these don't sound like particularly "serious" crimes crying out for "harsh punishment."

NMCCA notes that this cases arose before the Moreno presumption took effect. Id. at *19. So perhaps this case is like the Battle of New Orleans, which was fought after the Treaty of Ghent had already ended the War of 1812: it will make the skirmish's winner (the government? NMCCA?) feel better, but it won't have any real impact on the issue's ultimate resolution. But, unlike the Americans and the British facing each other at Chalmette Plantation, NMCCA knew about the larger conflict's resolution. The court nevertheless weighed in with a 16-page published opinion. NMCCA seems to hope that the Treaty of Ghent's terms might still be subject to revision.

--Dwight Sullivan


Anonymous said...

Surely you refer to the battle of New Orleans of July of 1866, where a group of confederate soldiers and sympathizers attacked a meeting of black civil war veterans and radical republican state legislators in a futile attempt to refight the civil war. Like James Longstreet, Earl Van Dorn, and Nathan Bedford Forrest, the Navy-Marine Corps Court of Criminal Appeals cast its lot with a losing cause. In fact, there never would have been a C.A.A.F. case recognizing a due process right to timely appellate review had the Navy-Marine Corps Court of Criminal Appeals not obstinately refused to grant relief pursuant to Tardif and turned a blind eye to the plight Sailors and Marines who, with meritorious issues on appeal, langished in military brigs until long after they had served sentences to six and twelve years of confinement and their appeal was reduced to a "meaningless ritual." The confederates in New Orleans in 1866, having devestated their state and the nation, and having brought reconstruction upon themselves, no longer had the right to dictate the course of history. Judge Wagner's opinion reads more like the death rattle of the old south in 1866 than it does of two great armies ignorant of the fact that the contest had already been decided.

Jason Grover said...

It is a very good point that none of the Diaz-Toohey-Moreno line of cases was necessary after Tardif. It was only after the service courts failed to exercise their Art. 66 powers to grant relief that CAAF went hunting for a means to grant relief under Art. 67. CAAF had to find a legal error to base relief on, and thus, developed the Due Process right to a timely appeal line of cases. But interestingly, it seems CAAF still doesn't actually want to be in the business of fixing things. CAAF wants the service courts to do the heavy lifting under Art. 66. Art. 66 doesn't get courts overturned. So, after speaking loudly in Diaz-Toohey-Moreno, the Court's stick is rarely used. Allison and RRR are great examples of the "we sure hate this delay stuff, but let's not get too carried away with it" mentality that CAAF seems to have embraced. Does CAAF really have confidence that the service courts and the service JAGs understand the problem and are dedicated to fixing it? If not, when will the Court pick up the big stick and start letting people out of confinement or setting aside punitive discharges?