Tuesday, July 24, 2007

The Military Justice Doldrums...

In years past, at this time in the summer the Court of Appeals for the Armed Forces would finally be issuing opinions of some precedential value, while still holding the major decisions until September 30th. But with Chief Judge Effron keeping the trains running on time, and with the next decision not expected until October at the very earliest, military justice is adrift in the doldrums.

With a BoSox World Series appearance all but guaranteed, I decided to peruse the latest opinions out of the Courts of Criminal Appeals. I came across an interesting opinion from the N-MCCA written by Judge Couch the Wise (JCTW). United States v. Rodriguez, No. 9900997 (N-M. Ct. Crim. App. July 17, 2007), is an unpublished opinion. What makes it interesting, is that two of the judges, Judges Vollenweider and Stolasz, felt it necessary to write a separate concurring opinion on the issue of post-trial delay in an unpublished decision.

The case involved a prior remand from the N-MCCA. Because his original court-martial took place in 1998, Gunnery Sergeant Rodriguez raised the issue of post-trial delay as one of his seven assignments of error. As a member of the court that bore the brunt of the CAAF’s decision in Moreno, JCTW begrudgingly enforced the decision. When discussing the Appellant’s argument that much of the delay was due to his previous appellate defense counsel’s “other caseload commitments,” JCTW had this to say: “We note that appellant’s claim is based upon his appellate defense counsels’ assertions contained in their ‘boilerplate’ motions for enlargement of time, and not upon any sworn affidavits or other sources of evidence.” According to the Court, “the record contains no explanation for this period of delay other than the pro forma averments of counsel in their motions for enlargement of time.” Those familiar with the Moreno decision will recall that these “boilerplate” and “pro forma” assertions were found to be “sufficient evidence” that the delay was due to the manning at the appellate defense division during the first half of this decade in that case. But, perhaps because he too was familiar with the Moreno decision, JCTW followed the decision. “However, based upon the precedent set by our superior court, we are constrained to not hold the appellant” responsible for this delay. It is here that the opinion gets interesting.

Judges Vollenweider and Stolasz wrote separately to add their thoughts on CAAF’s decision in Moreno, thoughts that JCTW was apparently unwilling to include in the Court’s opinion. While the two judges agreed that the United States had a responsibility to properly staff the appellate defense division, they took issue with the “boilerplate unsworn statements from appellate defense counsel that other caseload commitments prevent the filing of a brief” at issue in Diaz, Toohey, Moreno, and Rodriguez. According to the two judges, such averments of counsel do not constitute a record “from which to draw a rational determination that the Government failed in its duty” to staff the appellate defense division. In a footnote, they “observed” that the Federal Circuit Court Cases cited by the CAAF in Moreno were “replete with developed facts, not mere assertions of counsel.” Judge Vollenweider then claimed that the Court itself had solved the post-trial delay problem: “My sense is that as this court’s rules have changed to require recitation of specific facts in order for a party to establish good cause for an enlargement of time, counsel have focused on proper prioritization of their time, resulting in far fewer motions for excessive enlargements.”

Because neither Judge Vollenweider nor Judge Stolasz were on the N-MCCA in 2003 when Diaz v. JAG of the Navy, 59 M.J. 34 (2003), was decided, they should be forgiven for not reading the appendices to the decision, which are now published in the Military Justice Reporters and are replete with “developed facts” including the caseload of appellate defense counsel, the methods those attorneys used to manage that caseload, data on filing times, the funding and appointment system, and a letter from the Chief Judge of the N-MCCA, Colonel Dorman, begging the Judge Advocate General for more resources. They would also have the letter from the Division Director of Appellate Defense, Captain Cooper, pleading for more resources and the adequate manning of the defense division.

Unfortunately, despite four years of litigation and warning shots from the CAAF in Diaz and Toohey, the appellate defense division was not consistently kept at full strength until after the Moreno decision last term. Not surprisingly, the backlog vanished in less than a year. This had nothing to do with the rules of the N-MCCA, which those at the appellate defense division tell me only generated more work, but rather the division being staffed with eighteen active duty counsel instead of the seven serving in the division when Diaz was announced. The average caseload at the division is now roughly ten cases per attorney and not the seventy to one hundred cases carried by each attorney in 2003-2004.

What is truly disturbing is that, on a record so developed as the one in Rodriguez (admittedly through the voluminous documents regarding the state of the division available in the military justice reporters), two judges of the N-MCCA still believe that post-trial delay was caused by lethargic counsel who were willing to perpetuate a fraud on the military justice system by filing fraudulent enlargements and by an N-MCCA who was complicit in the whole affair by not changing its rules. It is nothing less than a travesty that the N-MCCA did not change its rules sooner, before Marines like Moreno served all of their lengthy prison sentences before being pronounced victorious in a meaningless ritual.


Nathan Jessup said...

I cannot wait for the appellate government types response to this one. I am wondering how JO'C, our self styled call it like it is commentator, sees this one. Counsel in Diaz did an admirable job building a record, one that they should cite on a resume to a civilian law firm doing civil litigation rather than to continue their careers as mil jus practitioners. I wonder how JO'C sees that record given its consequences on the system and the seeming meddling with the system that CAAF has engaged in during its post trial delay phase opinions. I am not suggesting that a call it like it is commentator would engage in results decision making, but I wonder.

John O'Connor said...

Wow, that's a fairly personal commentary. And I should note that my "call it like I see it" remark in an earlier thread was tongue in cheek, a remark designed to get a chuckle out of my friends on this blog. Maybe irony, facetiousness, and tongue in cheek commentary don't come out as well in the blogosphere as one would hope. But if it's my "call it as I see it" remark that has somehow offended you, you should know that you're misreading my inended tone in making that comment.

Anyway, since you've more or less turned a post that has nothing to do with me into an implicit attack on me, I'll give you an answer. The posttrial and appellate delays that we have seen in the military justice system are an embarrassment, and I don't think I have said anything contrary to that. As for its causes and assignment of blame, I'm not really in a position to comment on delays once a case gets referred to a CCA, as my sole experience at the appellate level was two summers at an appellate government division. I can say that some of the delays that occur at the command level are inexcusable and are, in my view, generally the fault of insufficient attention to post-trial matters by local commands. This inattention also leads in many cases to poorly drafted SJARs and CA actions, such as the all-too-familiar example where the CA is insufficiently clear in approving the punitive discharge that, under the rules, he is allowed to approve but not order executed.

I am in favor of streamlining the postrial and appellate review processes in any reasonable way that will allow for swifter justice on appeal. My personal view is that one way to do that would be to try to reduce the number of cases that end up on appeal in the CCAs, as I think there is little reason why accuseds with truly contested courts-martial should languish in the appellate pipeline behind cases that presented no issues at trial whatsoever, such as the classic UA dive where the accused pleads guilty, raises no issues, and asks for the BCD that he gets.

I don't know if that answers the things you seem to wonder about my views on the subject. I'm not inclined to take on the homework assignment of going back and reading Diaz (a case I doubt I have read since it issued after my departure from activie duty), the record from Diaz, or the NMCCA decision cited by Guert, so I think this is as good as it's going to get.

Anonymous said...

Come on Guert, you may be dead, but who was keeping the trains running on time? CJAE has been there for years -- trains not on time, not even close, and nothing shows it was despite him. Suspect it was JSS, former counsel to SASC who made it happen, he has the background for that. Regardless, good the trains are on time now, and it took all five judges to make it so. Hope it keeps up; most helpful for next term's arguments.

Jason Grover said...

Guert's post does raise an interesting question, what exactly does NMCCA want to see from appellate counsel? This is especially interesting now, as most of the court and the counsel have rotated since the days of Diaz and Toohey. Much corporate knowledge of the repeated attempts by various Appellate Defense Division Directors to seek more resources has been lost. It must be difficult for a current appellate defense counsel, with a light docket but with that one really old case to attempt to develop the record of what the Director did in response to the backlog 5 years ago. CAAF apparently foresaw some of this difficulty when they added the appendices to Diaz. Here is the link off the 30 October 2003 Daily Journal entry: http://www.armfor.uscourts.gov/journal/2003Jrnl/2003Oct.htm

(sorry No Man, I don't know how to hyperlink in a comment)

If there are any active counsel, defense or government, that have not read those, they are well worth the read. Especially because I don't think CAAF is losing its corporate knowledge anytime soon.

Post-trial delay is one of the interesting issues where the record after the trial is much more the focus than the record of trial. The other one is IAC of appellate counsel.

Col Jessup,
Why the hostility to CAAF: "[S]eeming meddling with the system that CAAF has engaged in during its post trial delay phase opinions."?

Isn't CAAF supposed to oversee the system. And after Tardiff, the CCAs, did not use their Art. 66 power to correct a huge problem. CAAF then attempted to fix it by annoucing that appellants had a due process right to a timely appeal in Diaz. The CCAs still didn't correct the problem, so CAAF went further in Toohey I and actually gave us the test. Moreno is only the result of attempts going back to 2002 to correct the huge backlogs. It was slow in coming, but it appears to have had a positive effect if what Guert says about the caseload of the Appellate Defense Division is correct. What would you have preferred Col? CAAF stay out of it and the caseload to remain at 60-70 a counsel. Is that justice? Does it make the system look good to our citizens? CCAs weren't fixing the problem, Judge Advocates General weren't fixing the problem, CAAF had to step in to protect the system.

And as far as the government's response, it is interesting to note that none of CAAF's actions have bothered the United States enough for the real SG to seek cert.

You comments about the counsel in Diaz acting like a civil litigator bring to mind the symbol of Code 45, but I will let CAAFlog discuss that.

Anonymous said...

Surely the Navy-Marine Corps appellate government shop must have enjoyed its spanking in Moreno and felt that the spanking was justified because there were many possible appellate issues to run up to the Supremes, such as: (1) whether CAAF, after overturning the case on the challenged juror issue, improperly issued an advisory opinion on the speedy post-trial delay issue; (2) whether CAAF abused its discretion in applying the Barker factors - e.g. counting the defense requests for continuances against the government and redefining prejudice to include "constitutional anxiety" - whatever that is; (3) whether CAAF may have improperly usurped the President's rulemaking authority under Art. 36 by legislating appellate time constraints under the guise of applying presumptions; and (4) because under Art. 67(c), CAAF can only act with respect to findings and sentence approved by the convening authority and affirmed by the CCA, what jurisdiction does CAAF have in prospectively limiting the sentence that the convening authority can approve on a sentence rehearing? See Clinton v. Goldsmith, 526 U.S. 529 (1999) (holding that CAAF’s jurisdiction is strictly circumscribed to review court-martial findings and sentences).

Guert Gansevoort said...

I could be wrong, after all I am dead, but I believe that the Navy-Marine Corps appellate government division did ask the SG to seek cert and the SG declined to do so. If I am wrong, someone from the appellate government division please correct me. If he did decline to seek cert, or if the division did not ask him to seek cert, they were certainly right to do so.

There is hardly anything novel about the Moreno decision. But before I begin, I must add one more piece to the Moreno decision that its detractors are certainly not aware of. At the same time Toohey was filing his writ for expedited appellate review at the CAAF, so was Rodriguez-Rivera. The Court, sua sponte, named the JAG of the Navy as a respondent in Rodriguez-Rivera. In his separate pleading filed for the Court, which the CAAF enjoyed so much it published it in the MJ’s at 61 M.J. 19 (C.A.A.F. 2005), the JAG said that the appellate defense division and the N-MCCA had all the attorneys that they were ever going to get. So, two years after the Court fired a warning shot in Diaz, and one year after the Court fired another warning shot in Toohey, each time reminding the JAG of the Navy of his statutory and constitutional responsibility to staff the appellate apparatus in the Navy and Marine Corps, the JAG of the Navy told the Court to mind its own business. The JAG had crossed the Rubicon, and conflict was now inevitable. Moreno is just where the two parties met.

And the CAAF was hardly treading new ground in that case. Nearly every circuit has applied the Barker factors to claims of post-trial delay. See e.g., Latimore v. Spencer, 994 F. Supp. 60, 67 (D. Mass. 1998), Simmons v. Reynolds, 898 F.2d 865 (2d Cir. 1990), Burkett v. Cunningham, 826 F. 2d 1208, 1222 (3d Cir. 1987), United States v. Johnson, 732 F. 2d 379, 381-82 (4th Cir. 1984), cert. denied, 469 U.S. 1033 (1984), Rheuark v. Shaw, 628 F. 2d 297 (5th Cir. 1980), cert denied 540 U.S. 931 (1981), United States v. Smith, 94 F. 3d 204 (6th Cir. 1996), United States v. Kimmons, 917 F. 2d 1011 (7th Cir. 1990), United States v. Hawkins, 78 F. 3d 348 (8th Cir. 1996), cert denied, 519 U.S. 844 (1996), United States v. Tucker, 8 F. 3d 673 (9th Cir. 1993)(en banc), cert denied, 510 U.S. 1182 (1994), and last but not least, Harris v. Champion, 938 F. 2d 1062 (10th Cir. 1991), Harris v. Champion II, 15 F. 3d 1538 (10th Cir. 1994), Harris v. Champion III, 48 F. 3d 1127 (10th Cir. 1995).

As for “constitutional anxiety,” that language is taken from Barker itself, where the Supreme Court listed minimization of anxiety as one form of prejudice along with impairment of defense and oppressive incarceration. An example of how this can be demonstrated is seen in United States ex. Rel. Green v. Washington, 917 F. Supp. 1238 (N.D. Ill. 1996). In that case, the incarcerated inmates brought in voluminous psychological evidence as to the impact that the excessive appellate delay was having on the health and welfare of the appellants. The CAAF added the requirement that anxiety be constitutionally cognizable anxiety so as not to open the door to relief for every inmate that was simply worried about their appeal. But, because no military court or JAG is likely to fund the psychological evaluations at issue in Green, I doubt seriously that military courts will ever see this prejudice factor litigated.

Ex. Rel. Green is also important because it provides detailed information on the processing times for appellate systems throughout the United States and Puerto Rico. Guess where the Navy-Marine Corps Appellate system ranked? Fifty-second, Puerto Rico, with delay of well over two years, beat the average processing time by over six months. I think JOC, who adds much balance and perspective to every debate on this blog, hit the nail on the head when he called this an embarrassment.

One familiar with the Ansell-Crowder controversy that resulted in the reforms to military justice in the 1920’s, with Professor Morgan’s work to establish an “appellate counsel,” and, most importantly the legislative history of the UCMJ, should know that the CAAF was not intended to sit idly by as military men refused to rectify injustice. There is established precedent for ability of the CAAF to set time constraints for post-trial processing. See e.g., Dunlap v. Convening Authority, 23 C.M.A. 135 (1974). But CAAF did not do that. Instead, the Court established presumption “under the guise” of presumptions just as other Federal Circuits Courts have done. See e.g., Harris 1, II, and III.

Finally, I am not certain why CAAF’s addressing a live constitutional issue interrelated to the members issue was in any way “advisory.” Because Moreno had served entire prison sentence to six years confinement before NMCCA even rejected his meritorious appeal, he had undeniably been oppressively incarcerated. Should it have been left to a military judge to determine the effect of appellate delay? If so, why have other circuits left open the option of an additional sixth amendment motion at rehearing if additional prejudice can be established? See, e.g. Reuhark. I don’t think that the Federal Courts issue advisory opinions by deciding live questions regarding the deprivation of rights. Nor do they usurp the authority of Congress or the President to make rules for the government of courts-martial. The CAAF had a statutory duty to protect the rights of servicemembers when the President, through the JAG of the Navy, told the Court that he would not do so. What is so amazing is that there are those, including the two judges cited above in Rodriguez, who believe that the Court has overstepped its bounds or done something novel. While the 1st and 11th Circuits have yet to address the issue and join every other Circuit and the CAAF in applying Barker to claims of post-trial delay, I don’t think that a circuit split of interest to the SG is in the offing. And the Courts did not go as far as some Circuits, such as the Sixth Circuit, which applies a presumption of prejudice to such claims. See, e.g., Smith.

H Lime said...

Jason, re the hyperlinking. You simply insert the following code, making sure you delete the asterisks before posting:

<*a HREF="URL">Link Description<*/a>

For a link directly to CAAFlog, that becomes:

<*a HREF="http://caaflog.blogspot.com/">CAAFlog<*/a>

Guert beat me to hitting post, but I agree. The only interesting thing about Rodriguez' concurring opinion is the fact that there was one. Moreno as you know simply looks to whether the delays "benefited [appellant] or that [appellant] was consulted about and agreed to these delays" and that "The Government bears responsibility for unreasonable delay . . . occasioned by the workload of appellate defense counsel."

As factfinding courts, the CCAs can only decide on the facts before them. Government gains the occasion to demonstrate that the delay was reasonable, that ADC spent half of every workday in the gym, and refuse to consent to all enlargement requests where the Appellant doesn't concur with ADC's enlargement request. Etc, etc. Precedent thus far shows that it's hardly an insurmountable hill.

Whether we presume the ball dropped, then decline to grant relief because it was of no matter and Gov didn't drop it, or we force Appellant to prove Gov dropped the ball, the fact is that the Government is always in a better position to control the pace of appellate review. To force an appellant who's never even seen a ball to prove that it was dropped seems an unreasonable burden on the incarcerated, or in extremis, appellant.

I understand and sympathize with Anonymous' judicial legislation concerns, but it doesn't seem remarkable to claim that prospective sentence limitations resulting from Due Process violations fall under 67 review of matters of law.

H Lime

John O'Connor said...

Thanks for the kind words, Guert (dead though you might be). I think there is an implicit assumption that I am "anti-Moreno," though I don't think I've ever really said that. I do believe that appellate review delays can implicate due process concerns. I also believe that an appellate court is within its rights to create (and announce) presumptions that it will use in deciding whether delay is unreasonable. I'm not sure I am a big fan of stated presumptions (those who remember the Burton Article 10 presumptions are familiar with that debate), but I don't think that's an illegitimate tool of decision-making. Heck, if the court says in one case that 90 days is reasonable and says in the next case that 120 isn't, hasn't it in effect set a guideline that the line is somewhere between 90 and 120, as a matter of precedent if not "rule-making"?

As I have said before, I'm not really in a position to comment on the way that CAAF viewed and applied the facts and circumstances of the various delays in Moreno, or to assign blame for the various delays, but I think the analytical approach is a defensible one (even if I might be reluctant to set out the various presumptions explicitly).

Anonymous said...

The real fix to any appellate delay problem is for Congress to eliminate the requirements for a CA's action and SJAR - ie, kill Art. 60. Let the trial judge authenticate the record and send it up for review. The results of trial would document the effects of any PTA.

John O'Connor said...

Not sure I would be a fan of getting rid of the CA action. There are cases (my experience was that they were few and far between, but existing nonetheless), where a CA would take action on a sentence not required by the PTA, and dumping the CA's action would essentially eliminate that possibility. It also would take courts-martial farther away from being the tool of command discipline that justifies their existence. I do think that the SJAR is largely a wasted exercise, other than telling the CA what he must do based on a PTA.

45alum said...

Since Judge Vollenweider has now been specifically (and justifiably) excoriated on CAAFlog, I suspect we may soon, in response, see posted here one of those trademark "Anonymous" posts, which lashes out at posters with outlandish ethics charges, all while seeking to reaffirm the supremacy and omnipotence of the “we’re-the-same-as-Federal-circuit-court-judges” Navy-Marine Corps Court of Criminal Appeals.

Jason Grover said...

Thanks H. Lime, I will write that down and try it next time.

Anonymous said...

Not only did Navy appellate government not seek cert in Moreno from the SG, it didn't even ask for reconsideration before CAAF. Probably couldn't make the time deadlines. Go figure.

Guert Gansevoort said...

Thanks anonymous. As noted above, I doubt that it would have mattered if the division did seek the SG's approval. The Supreme Court has repeatedly denied cert on the issues presented in Moreno since 1984. Until another Federal Court besides N-MCCA (and in fairness to the Court, a minority of judges on the N-MCCA) disagrees with the analysis adopted by the CAAF and the majority of the circuits, I doubt the SG will be taking the trip down to One First Street. Or perhaps he is just in a very long and slow race to the courthouse with the attorneys from Army DAD.