Sunday, January 07, 2007

Moreno effect, Think of Wave Theory

In Economics class we learned about the Ellliot Wave Theory of stock market prices. See generally here (God bless Wikipedia, they have a page for everything). Essentially the theory is that a bull market (or crash) is caused by a series of increasingly larger waves, with corrective action after each up (or down) wave. In this case the initial impulse would have been Diaz. In the case of Moreno the real question is whether Moreno represents the second wave, with the crash right around the corner(e.g. crash = no one cares about post-trial delay any longer), or is Moreno a wave within a larger wave that has yet to crest?

If I was a gambling man, which one who relies on Elliott's theory to buy long and sell short has to be, I would say that Moreno and any perceived change at ACCA is just the crest of a small wave (motive wave 5 to Elliott) in a larger wave. The trend appears to not have had a real effect on convening authorities and their speed of processing the cases that have made it to and through the CCAs (these cases are all still a year old or more so there is a time lag). Once the large, institutional CA's make real changes in their processing goals and procedures, resulting in actual changes in overall processing time, we will see the crest of the post-trial delay wave. From what I can tell, that has not occurred in all the services--esp. the Marine Corps who still appear to be cleaning out their closets.



Phil Cave said...

"In light of this standard, we agree with the Court of Criminal Appeals’ conclusion that Canchola was not denied his due process right to timely post-trial review and speedy appeal."
So sayeth CAAF in Canchola, decided 4 January.
You will not see any wave until CAAF busts a few cases specifically for post-trial delay.
It now behooves appellate counsel to document the prejudice. If the appellant doesn't have a DD214 and can't get a job because of it, or something, or in a case I had recently, the client won on his issues, or something.
When CAAF can look at the appellate record and say "Is this prejudice I see before me," then the dagger may strike. Or what was that ad., "where's the prejudice?"
Seems to me the appellate defense divisions ought to develop a very detailed questionnaire directed toward showing PTD. Get the client to complete and update the questionnaire on a regular basis, with appropriate documentation as necessary. Or something.
Note, however, a comment in a recent case that the appellant with a family and access to medical care while on appellate leave doesn't always want a speedy appeal.

CAAFlog said...

I had a case while mobilized in 2003 in which I was able to win some sentence relief (though NOT knocking out the BCD) on the basis of this showing of prejudice, quoted from the NMCCA opinion:

The appellant has provided us with a Declaration, under penalty of perjury, that we now quote in pertinent part:
5. I wanted my Commanding Officer to set aside or suspend the bad-conduct discharge. While I planned to attend college to study civil engineering and pursue other career opportunities, I did not want to begin college or a new job when I hoped I would return to duty with my unit once my Commanding Officer reviewed the case.

6. As time passed, I realized it was unlikely that I would return to active duty. I explored the possibility of enrolling at Horry-Georgetown Technical College in Conway, South Carolina, to pursue an associate degree in civil engineering. I was, however, unable to use my Montgomery G.I. Bill benefits for tuition. I decided to put my educational plans on hold until my military status was resolved.

. . . .

9. Following the terrorist attack on 11 September 2001, I received a telephone call from my command and was directed to check in telephonically. I did so, calling my command approximately 10 times [*8] during September 2001. Following 11 September 2001, I again thought that I might be ordered to return to active duty with my unit. I continued to put my plans for college or a career change on hold until I learned whether I would return to my unit for duty.

Declaration of Private James S. Steudl of 25 October 2002 (emphasis added).

The appellant's father has also provided us with a similar declaration. We note the following extracts with interest:
2. After his court-martial and release from confinement, my son moved in to my house . . . I have had an opportunity to observe him closely since his court- martial.

. . . .

My son has experienced a great deal of anxiety as a result of the delay in bringing his case to a close. He has told me that he sometimes has trouble sleeping or concentrating due to his concerns about the unresolved situation. He has simply been unable to move on with his life because it has taken so long to resolve his court-martial.

Declaration of James F. Steudl of 25 October 2002 (emphasis added).

United States v. Steudl, 2003 CCA LEXIS 138, at *7-*8 (N-M. Ct. Crim. App. 2003).

I had also submitted copies of the appellant's and appellant's father's phone records to document that they had made multiple calls to the TDC and the CA's office in an attempt to determine the status of the case, which demonstrated timely complaints about the processing delay. I think NMCCA was particularly moved by those complaints -- Steudl was one of the few appellant who demonstrated that he actively complained about the delay in post-trial review.

TDCs MUST document contemporary complaints about lack of speedy review and appellate defense counsel MUST develop a systemic approach to identifying completed court-martial cases whose processing is lagging.

--Dwight Sullivan

Phil Cave said...

Thanks for the reminder of the case name. I remember that case. I have just cited it in a letter to a CA asking for relief based on post-trial delay, and the fact that the client has a civilian job he will lose.