Saturday, March 31, 2007

Moreno's New Formula: Post Trial Delay = A Little Payola

In the Army Court of Criminal Appeals latest post-trial delay decision, Etibek (memorandum opinion), ACCA gives back 1 month of confinement already served (and the appellant's automatic forfeitures for that period). ACCA deemed the appellant's claims worthy as a result of a 224-day delay in processing between authentication and the SJA's completion of the SJAR. In this guilty plea, desertion case (you don't see those too often), the SJA (who is named in the opinion) offered a series of reasons why it took her 224 days to write a two-page SJAR. ACCA didn't find any of them "compelling to explain why it took the SJA two hundred twenty-four days, on a fifty-seven-page record of trial, to create a two-page SJAR." ACCA also found prejudice to the appellant's chances for clemency and parole where there was no action on his case, which resulted in 13 months confinement, for 291 days.

This latter finding, about prejudice to clemency and parole, is something that can probably be said for any appellant with a non-life/long term of years sentence. I wonder if appellant's will seize on this and run for the payola? More importantly for the system, I wonder if this is the best trend in remedying post-trial delay--awarding post-confinement payola for post-trial delay. AFCCA used the same formula in Miller and CAAFlog has documented countless similar decisions, much to the displeasure of at least one of our readers. If the point of post-trial delay is to punish the government for denial of due process, the pain should be inflicted on the convening authority. Do CA's really lose any money when CCA orders come down, or is big Navy/Air Force/Army paying? I am guessing the $ flows from the "Lost Battalions" of each service (for those that have not read the Marine Corps Gazette article on the "Lost Battalion," I commend you to it and one of our reader's commentary on it here). Any other suggestions to make convening authorities feel the pain? Other than reassigning the offending servicemembers to the command, I can't think of much that would do the trick if the point hasn't been made yet.


Anonymous said...

I'm not sure what you mean when you say "AFCCA used the same formula" in Miller as the ACCA used in Etibek. Could you explain?

Phil Cave said...

CA's, and SJA's will never feel the pain, because the opinions come so late that it can be blamed on the predecessor.
What I'd like to see happen is an MJ grant one of my motions for post-trial release from confinement pending appeal. That will get them working.
At 120 days (having queried the command several time first), file a motion for a post-trial 39(a), to have the MJ release the accused pending appeal, and to order production of the record, or an explanation. Of course, that won't catch the cases where the MJ has authenticated the record.
For the post-authentication cases, it requires the trial defense counsel to file a writ with the CCA. Although, in both I have filed the courts declined to act. Perhaps if enough were filed, someone would get the message?

Anonymous said...

The trial judge in Miller actually did require an explanation -- it wound up being appended to the record and was relied on by the CCA when granting relief.

No Man said...

Actually Anonymous raises a good point that I didn't mention in comparing Miller and Etibek. AFCCA's decision in Miller is actually different than Etibek because the 6 months relief for 13 months of post-trial delay in Miller was meaningful relief. Miller's sentence was almost 10 years. The 6 months, while a small portion of the sentence, was meaningful in terms of liberty interests to Miller. Etibek, who only had a 13 month sentence, is the better example of the payola scenario. Good catch Anonymous!

No Man said...

For those looking for another payola case, the previously discussed Coast Guard case United States v. GREENE, No. 1226 (C.G.Ct.Crim.App. 2007), is a better example. CGCCA gave back some money in the form of a reduction to E-2 vice E-1 in that case. Adjudged confinement was only 180 days and delay was 201 days.

Anonymous said...

Does anyone know whether an appellant has actually ever received any money back (either as a result of Moreno or the old Gorski cases)? If so, where does the money go to and then come back from? My understanding is that forfeitures are actually paid to an accused from funds appropriated for personel costs and then taken away away (becoming non-appropriated funds that then either go back into the general treasury(?) or to the armed services retirement home). Are the courts' orders in Moreno cases actually self-executing to the extent that DFAS will just pay up without question? My recollection at least from the Navy Gorski cases is that CAAF's decision was not recognized as binding, and that appellants had to file claims and eventually sue to collect any money owed them. If no appellant has actually recovered any money, is this "relief" only illusory? Or, is there some technical benefit that an appellant actually receives (akin maybe to the disapproved v. remitted BCD)?