Ghosts in the machine

On 13 October, CAAFlog noted the retirement of Judge Diaz of the Navy-Marine Corps Court. But in some ways, he's still with us. Judge Diaz was the author of a published opinion dated 24 January 2007. United States v. Samuels, __ M.J. ___, No. NMCCA 200600257 (N-M. Ct. Crim. App. 24 Jan. 2004). Remember that Judge Diaz had retired more than three months before Samuels came out. Samuels was a unanimous opinion. The final paragraph in the opinion notes, "Judge DIAZ participated in the decision of this case prior to retiring from the Marine Corps Reserves." Id., slip op. at 8. Well then what the heck was the Navy-Marine Corps Court doing with the case for more than three months?

Samuels is from Quantico, not Hawaii, but it seems Lono may be cursing it as well. First there is the mysterious three-month gap. Then there is its continued absence from NMCCA's public web site. Due to this omission, I logged onto my Navy Knowledge Online account for the first time since 2003. Forget the World Wide Web; my NKO account had cob webs on it. Unlike the public NMCCA web site, NMCCA's NKO site includes the Samuels opinion. But get this -- a track changes version of the opinion is there. For example, we see that the opinion was originally dated 16 January but was changed to 24 January. (NMCCA: we will serve no opinion before its time.) There's no real juicy change, but it still seems quite a faux pas to post this version.

But here's the funniest part of all. Note this excerpt from the opinion: "In his next assignment of error, the appellant contends that he was denied his right to a speedy post-trial review. We agree." Id., slip op. at 5. Yeah, sitting on the opinion three months before releasing it really shows the court's concern with speedy review.

On the other hand, Samuels actually sets aside a finding of guilty on speedy trial grounds, dismisses the affected charge with prejudice, and refuses to apply Sales, remanding the case for a rehearing on sentence or approval of no punishment instead. Actually, that outcome in an NMCCA case makes it even odder.

--Dwight Sullivan