Wednesday, April 16, 2008

New published NMCCA opinion in Article 62 speedy trial case

United States v. Miller, __ M.J. ___, No. NMCCA 200800014 (N-M. Ct. Crim. App. Apr. 15, 2008).
Posted by Dwight Sullivan at 5:14 PM

10 comments:

Anonymous said...

I believe this MJ was recently overturned on another gov't appeal.

Wed Apr 16, 05:48:00 PM EDT
Anonymous said...

That's how it usually is, like in my case the MJ was overturned on several rulings.

This is a strange ruling nevertheless. But overall a favorable outcome.

Wed Apr 16, 06:43:00 PM EDT
Anonymous said...

Seems strange to basically tick off each wrong finding by the MJ, touch on each prejudice requirement and show there was no prejudice and then still uphold an Art. 10 violation. I am not sure what to read into that...

Wed Apr 16, 07:01:00 PM EDT
Anonymous said...

This case should serve as a reminder to all TCs that the Government needs to move cases. Except during Article 10 motions, the defense is rarely in a hurry to get things moving.

Now here is the question? Why was this Sailor in PTC? My read of the limited facts makes me wonder -did anybody advise the CA against PTC? If not, why not?

Why was the Sailor arraigned at 118(the 707 day when one considers excludable delay)?



That said

Wed Apr 16, 10:35:00 PM EDT
Dwight Sullivan said...

To me, the most interesting aspect of Miller is that NMCCA finds two Barker factors favoring the defense and two favoring the government and concludes that the balance favors the defense. It is also interesting to note which two Barker factors favored the government: the defense's failure to invoke the speed trial right and the lack of prejudice.

Now the ball is in Code 46's court. Does it stick with its position in United States v. Lopez de Victoria, 66 M.J. 67 (C.A.A.F. 2008), and United States v. Michael, 66 M.J. 78 (C.A.A.F. 2008) -- a position that GAD is no doubt currently trying to sell to the SG -- and not ask RADM MacDonald to certify the case to CAAF or does it take an approach like that of Judges Ryan and Erdmann in Michael and reason that like it or not, Lopez de Victoria provides the current governing law and seek certification?

Wed Apr 16, 11:11:00 PM EDT
Anonymous said...

I am not sure I've seen a case where a CCA has said that the MJ got every part of the analysis wrong but still up held the decision. Just on a read of the opinion I'd say the MJ was incorrect in her analysis but to be so far off the mark is surprising. Based on the case law now the government could appeal the decision to CAAF by writ correct? Though I doubt CAAF would review or even give the government relief if the Navy JAG certified the issue.

Thu Apr 17, 10:30:00 AM EDT
Justin said...

Where can one read this opinion if one is on an NMCI computer, which prevents access to the googlepage version?

Thu Apr 17, 01:30:00 PM EDT
Anonymous said...

Hmm surprising NMCCA hasn't updated their opinion page? IT is probably because they issue so many published opinions. There is this one and Bush (which CAAF basically overturned without knowing it) and this one looks like it could be headed to CAAF as well.

Thu Apr 17, 04:38:00 PM EDT
Anonymous said...

Is there no adult supervision at the RLSO in Norfolk? How does someone sit in PTC for 140 days without going to trial?

When I was a TC and had a PTC case, my boss would start yelling at me to go to trial around day 45 or so.

Fri Apr 18, 12:03:00 PM EDT
Dwight Sullivan said...

Justin, Miller is now up on NKO.

Fri Apr 18, 05:15:00 PM EDT

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