NMCCA releases published en banc post-trial delay opinion [UPDATED]

On 19 August, NMCCA released a published en banc opinion. It isn't up on NMCCA's web site yet, so I've posted it here.

The decision, United States v. Bush, __ M.J. ___, No. NMCCA 200700137 (N-M. Ct. Crim. App. Aug. 19, 2008) (en banc), reverses the court's previous published opinion in the case. United States v. Bush, 66 M.J. 541 (N-M. Ct. Crim. App. 2008). The previous Bush opinion seemed doomed from the start. The day after NMCCA issued its opinion providing relief to an appellant for seven years of post-trial delay, CAAF issued its opinion in United States v. Allende, 66 M.J. 142 (C.A.A.F. 2008), which seemed to directly undercut Bush I's determination that PFC Bush's declaration was sufficient to show prejudice arising from the post-trial delay.

The new en banc Bush II opinion provides some helpful guidance for litigating post-trial delay cases. I'll explore that guidance further over the weekend. But perhaps tonight someone can help me with a vexing question that the opinion raised in my mind.

In the en banc Bush II opinion, NMCCA applies Allende to find that PFC Bush has not adequately demonstrated prejudice arising from the post-trial delay. NMCCA writes: "The appellant has not submitted any affidavits or other evidence beyond his own declaration. Further, his declaration does not articulate if or why he was unable to provide such additional evidence. We conclude, therefore, that while the appellant provided an adequately detailed declaration articulating prejudice to his employment opportunities, he has not met his additional burden to provide corroborating evidence or an explanation of why such evidence could not be obtained. Consequently, this fourth factor of prejudice weighs in favor of the Government." Bush II, slip op. at 8.

Notwithstanding the lack of prejudice, NMCCA finds a constitutional due process violation. The court reasons: "[E]ven in the absence of specific prejudice to the appellant, the delay in the post-trial review of this case 'is so egregious that tolerating it would adversely affect the public's perception of the fairness and integrity of the military justice system.' Consequently, we hold that the appellant's due process right to speedy post-trial review has been violated." Id., slip op. at 8-9 (quoting United States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006)).

The court then tells us, "Having found constitutional error, we must now determine if the error was harmless beyond a reasonable doubt to determine if relief is required." Id., slip op. at 9. So far so good. And while NMCCA doesn't say so, we know that the burden is on the government to show that the constitutional error is harmless beyond a reasonable doubt. See, e.g., United States v. Harcrow, 66 M.J. 154, 160 (C.A.A.F. 2008).

But immediately after NMCCA sets out the harmless beyond a reasonable doubt requirement, the wheels seem to fly off the axle. Here's what NMCCA writes next:

The appellant's failure to independently corroborate his assertion of specific employment prejudice or alternatively to provide facts explaining his inability to provide such independent corroboration weighs heavily in our decision. The appellant does not assert and our review of the record did not reveal evidence that the appellant has suffered ongoing prejudice from oppressive incarceration or undue anxiety. We conclude, therefore, that the Government has met its burden to show that the post-trial error was harmless beyond a reasonable doubt.

Id.

How can it be that the burden is on the government to show that the constitutional error is harmless beyond a reasonable doubt, but the government carries that burden because the defense didn't make an adequate showing of prejudice? Unlike when applying the fourth Moreno/Barker v. Wingo criterion to consider whether there is a due process violation -- when the burden is on the defense to establish prejudice -- after the determination has been made that a due process violation has occurred, the burden is on the government to show lack of prejudice. But the government didn't even try to carry that burden. The opinion previously told us that while PFC Bush provided an affidavit describing the post-trial delay's adverse effect on his employment opportunities, the "Government responds with no evidence beyond an assertion that the appellant's claims are 'without supporting proof' and are 'unverified and speculative.'" Id., slip op. at 4.

It appears to me that NMCCA has completely missed the effect of the burden shifting that its finding of constitutional error required. The opinion seems to be analogous to a court saying that the burden of proof to establish the appellant's guilt is on the government, the defense presented an unconvincing alibi defense, the government didn't present anything, so the government wins. In other words, it appears to be clearly wrong.

But it does occur to me that perhaps I'm missing some obvious or nuanced point that makes sense of NMCCA's apparent failure to require the government to establish harmlessness beyond a reasonable doubt. This was a unanimous en banc opinion joined by eleven judges of the Navy-Marine Corps Court. If the prejudice analysis is as obviously wrong as I think it is, it seems implausible that not one of those eleven judges would have disagreed with the opinion's treatment of the issue. So if I'm missing something, please, please, please educate me in the comments. But if I'm not missing anything, then it would seem that NMCCA's Bush II opinion will be followed by a Bush III opinion from CAAF that perhaps will require NMCCA to issue a Bush IV opinion.

[UPDATE: Upon looking at Allende again this morning, it becomes apparent why Bush II follows this form: it directly follows the line of Allende's reasoning. So if there is a failure to shift the burden, it was CAAF's failure in Allende and NMCCA is acting appropriately by following the precedent of its superior court. As I suggested last night, the fact that 11 NMCCA judges signed onto this opinion without dissent suggested to me that maybe I was missing something. And I was. More later.]