The Moreno Doppelganger

We are snowed in here in upstate New York so I thought I would devote some time to Mr. Sullivan’s theory about a Moreno effect. Nine months after Moreno was decided, it appears that the decision is both increasing and decreasing the number of decisions published by the Courts of Criminal Appeals. If one subtracts the number of published opinions devoted to questioning, limiting, or urging the C.A.A.F. to overrule Moreno, from the total number of published opinions so far this FY, the number of published opinions is only slightly higher for the Air Force and Coast Guard while significantly lower for both the Army and Navy-Marine Corps.

The Coast Guard and Air Force Courts of Criminal Appeals have each published a decision explaining or limiting the Moreno decision. In United States v. Holbrook, 64 M.J. 553 (C.G.C.C.A. 2007), the Coast Guard Court of Criminal Appeals explained that Moreno was inapplicable to its Article 66 or Tardif analysis, which “does not lend itself to bright-line rules and strict timetables.” Id. at 557. Ironically, the Supreme Court said the same thing about its Barker factors, which the C.A.A.F. now applies timelines to. In United States v. Vieira, 64 M.J. 524 (A.F. Ct. Crim. App. 2006), the Air Force Court suggested that delay caused by its deliberative process is not subject to scrutiny under Moreno. “Because most of the delay was a result of the exercise of this Court’s judicial-making authority and the appellant has not asserted any specific prejudice, we decline to grant any relief.” Id. at 529. But Moreno does not exempt from its analysis inordinate delay attributable to the deliberate processes of the Courts of Criminal Appeals. “We will apply a more flexible review of this period, recognizing that it involves the exercise of the Court of Criminal Appeal’s judicial decision-making authority.” 63 M.J. at 137. Thus, while the C.A.A.F. will be more deferential in cases where excessive delay is attributable to the Courts of Criminal Appeals, the Courts do not have the blank check that the Air Force Court believes that it has. In Moreno, the Navy Court of Criminal Appeals took six months to issue their erroneous decision. The C.A.A.F. found that this period of delay was reasonable. Id. In Viera, the Air Force Court of Criminal Appeals decided the appellant’s case nearly two years after the appellant filed his brief and one year after the appellant personally submitted additional matters. Is this unreasonable? We may soon find out. A petition was filed with the C.A.A.F. in Vieira on December 11, 2006.

This blog has previously discussed the Navy-Marine Corps Court of Criminal Appeals’ decisions in United States v. Adams, __ M.J. __ (N-M. Ct. Crim. App. 2006) and United States v. Canchola, 63 M.J. 649 (N-M. Ct. Crim. App. 2006). Both call for modifications to be made to Moreno. The C.A.A.F. has already rejected the lower court’s modifications in Canchola. United States v. Canchola, 64 M.J. 245 (C.A.A.F. 2007). Adams filed his petition for grant of review on January 10, 2007. If you subtract Adams, which was decided this FY, the numbers suggest a possible Moreno effect at both Army and Navy-Marine Corps Courts.

Interestingly, a LEXIS search reveals that the Army Court of Criminal Appeals has yet to issue an opinion citing Moreno. The Navy Court has issued forty-one opinions citing the case. The Air Force is a distant second with only four citations. One of these, United States v. Varga, (A.F. Ct. Crim. App. Oct. 12, 2006), cited Moreno only for the implied bias issued that won Moreno’s appeal. Interestingly, the Air Force Court of Criminal Appeals has never found delay to be unreasonable, and delay in that service has never triggered the Barker due process analysis. The Coast Guard has cited the case only twice. In fourth place is the New Mexico Court of Appeals with one case. State v. Stock, 147 P. 3d 885 (N.M. Ct. App. 2006). I understand from my friends at the Army GAD that the Army Court routinely issues summary dispositions. Does that explain the Army Court’s silence on Moreno? Or has the Army Court decided that discretion is the better part of valor after seeing how well the “suggestions” of the Navy-Marine Corps Court have been received above. Or has Army TJAG adequately staffed the appellate defense divisions and the court of criminal appeals and thus eliminated any Moreno problem and the need to cite Moreno for anything other than implied bias?