Monday, December 24, 2007

NMCCA Affirms Article 10 Dismissal

In an unpublished opinion authored by Judge White, NMCCA affirmed a military judge's dismissal with prejudice of an indecent assault case on grounds that the government violated he accused's right to a speedy trial under Article 10.

The accused, Aviation Boatswain's Mate (Launching and Recovery Equipment) Second Class Daniel Ortizrodriguez (let's just call him the appellee) was initially accused of rape and civilian authorities conducted an investigation. The civilians elected not to pursue the case, and the Navy requested that appellee be detailed a defense counsel. Eventually, appellee was restricted to the limits of the USS JOHN F. KENNEDY, which was in the process of decommissioning. Appellee remained restricted through the decommissioning process, and after KENNEDY decommissioned, appellee was restricted to a barge. The military judge ruled that the conditions of appellee's restriction were tantamount to confinement. On appeal, the government did not contest this finding. Appellee spent a total of 101 days in restriction tantamount to confinement without being arraigned.

The delay NMCCA found troubling enough to warrant dismissal with prejudice included 27 days that elapsed between imposition of restriction and preferral, and 44 days for the investigating officer to complete the Article 32 investigation. Much of the delay associated with the Article 32 was attributable to the investigating officer keeping the investigation open in hopes of obtaining evidence the trial counsel had informed him was likely lost.

We'll see if the government lets this case lie harmlessly in unpublished oblivion or risks a published CAAF opinion. There's nothing especially groundbreaking here legally speaking, a straight forward, fact intensive application of the Barker v. Wingo factors.

Since the case hasn't hit the NMCCA web page yet, I'll zap a copy to No Man for posting on


CAAFlog said...

Kabul Klipper -- remember that the Navy-Marine Corps Appellate Government Division (Code 46) took the position in Lopez de Victoria and Michael that CAAF has no jurisdiction to review a CCA's ruling on an Article 62 appeal. So unless CAAF releases an opinion repudiating that view in the next 24 days, it would seem rather hypocritical for Code 46 to seek certification.

John O'Connor said...

I agree with CAAFlog (though I, unliek CAAFlog (I think), believe that Code 46 has it wrong as to whether CAAF has jurisdiction.

Anonymous said...

Forgive my ignorance, but is Art. 10 designed as a self-policing measure of the fast-moving military judicial system?