NMCCA's Bush II opinion provides valuable post-trial delay litigation guidance and reveals a flaw in CAAF's Allende opinion

As we previously noted, NMCCA's new published opinion in United States v. Bush overturns a published panel decision, 66 M.J. 541, that had provided relief to PFC Bush for seven years of post-trial delay. The en banc court reversed the panel due to CAAF's opinion in United States v. Allende, 66 M.J. 142 (C.A.A.F. 2008). United States v. Bush, __ M.J. ___, No. NMCCA 200700137 (N-M. Ct. Crim. App. Aug. 19, 2008) (en banc), which came out the day after Bush I and totally undercut its reasoning. But, as Bush II demonstrates, Allende suffers from an analytic flaw. CAAF should grant review of Bush II and use it as a vehicle to correct its analytic mistake in Allende. (Indeed, this would even seem to be one of those cases in which the Judge Advocate General should certify the case to CAAF despite the government's victory at the CCA level.)

In Bush, more than six years passed between the CA's action and NMCCA's receipt of the record. So the first of the four Moreno/Barker v. Wingo factors -- unreasonable delay -- was a slam dunk. (Additional delay resulted because NMCCA found that the original post-trial processing was marred by error and remanded the case for a second CA's action.) NMCCA also found that the government's explanations were "inadequate to justify the delay," putting the second of the Moreno/Barker v. Wingo factors in PFC Bush's column as well. Where the opinion gets really interesting is NMCCA's analysis of the third and fourth factors.

For both the third and fourth factors (assertion of right/prejudice), the defense relied entirely on an uncorroborated, but quite specific, declaration from PFC Bush. For the third factor, PFC Bush stated that he repeatedly contacted his command and the Navy-Marine Corps Appellate Leave Activity (the unit to which all Marines and Sailors on appellate leave are transferred) inquiring about his case. NMCCA tells us, "The Government responds with no evidence beyond an assertion that the appellant’s claims are 'without supporting proof' and are 'unverified and speculative.'" Bush II, slip op. at 4. Au contraire, rules NMCCA. PFC Bush's claim is not "without supporting proof," as the government argues, because "the appellant's declaration is itself some evidence on the appellant's claim." Id. That declaration "identified particular Government offices he contacted about his case during a particular timeframe." Id. Quoting CAAF's opinion in United States v. Gosser, 64 M.J. 93, 98 (C.A.A.F. 2006), NMCCA finds that the declaration "offers 'adequate detail to give the Government a fair opportunity to rebut' the appellant's contention that he asserted his right to speedy post-trial review. The Government, undeniably in the best position to verify or refute the appellant's claims, has provided no evidence to the contrary." Bush II, slip op. at 4. NMCCA concluded that the demand "factor favors the appellant." Id.

But while the uncorroborated declaration was sufficient to meet the demand criterion, NMCCA was compelled by Allende to hold that it was insufficient to satisfy the prejudice criterion. PFC Bush's declaration explained that "three to four years after his trial, he was denied employment as a fork-lift operator by the Costco store in Huntsville, Alabama." Id. PFC Bush further explained that he had held an "identical job in a Costco store in California and that the reason he could not transfer his employment from California to Alabama was specifically because he lacked his final discharge papers (DD Form 214)." Id., slip op. at 4-5.

NMCCA notes that the government argues that "under Allende, an appellant's declaration or affidavit of prejudice, standing alone, will never be sufficient to meet his burden of proof no matter how detailed and specific it might be." Id., slip op. at 5. NMCCA disagrees, explaining: "To be adequately specific, a post-trial claim for relief must state specific facts, which, if true, entitle the appellant to the relief sought. As well, [a]ppellant must specifically identify how he would be prejudiced . . . due to the delay. Finally, a claim must be detailed enough to provide the Government a fair opportunity to rebut the contention asserted." Id. (quotation marks and internal footnotes omitted). The court also observes that the "burden is on the appellant to provide legally competent evidence demonstrating the prejudice asserted." Id., slip op. at 6.

NMCCA then summarizes the law of declaration corroboration post-Allende. "While an appellant's affidavit or declaration based on first-hand knowledge of the facts, standing alone, is legally competent evidence, in Allende our superior court was unpersuaded by the appellant's affidavit in the absence of additional supporting legally competent evidence." Id. But that doesn't mean that an uncorroborated affidavit or declaration is never sufficient to demonstrate prejudice:

Allende relieves the appellant of his obligation to provide independent third-party substantiation of the facts underlying his claim of employment prejudice upon a showing that he reasonably attempted to obtain such independent corroboration but was unable to do so. Thus, if an appellant's claim is adequately specific on its face to state a claim of legal error, such that the Government may, with reasonable effort, take steps to confirm or refute the appellant's assertions, and if such claim of error is either factually supported by independent evidence -- or the appellant's affidavit or declaration specifically articulates his inability to obtain such independent evidence -- the burden of going forward with the evidence shifts to the Government.

At that point, if the Government does not contest the relevant facts, or expressly concedes them, we may treat the appellant's asserted facts as uncontroverted and decide the issue without additional fact-finding. If, however, the Government rises to meet its burden of going forward by presenting affidavits or other evidence that place material facts in dispute, an evidentiary hearing is ordinarily required.

Id., slip op. at 6-7 (internal footnotes omitted).

NMCCA also noted that CMA has held that an appellant's detailed but unsubstantiated claims can sufficiently demonstrate prejudice where the evidence supporting those claims is in the government's possession. Id., slip op. at 6 n.19 (citing United States v. Shely, 16 M.J. 431, 432 (C.M.A. 1983)).

NMCCA then forcefully rejects the notion that the government may "contest" an appellant's claims simply by disagreeing with them without any evidentiary support and calls into question the ethical permissibility of disagreeing with an appellant's claims without having actually researched them:

The Government's brief attempts to distinguish the term 'contest' from the term 'rebut.' The Government argues they may 'contest' an appellant's affidavit simply by putting the court on notice that it takes exception to the appellant's affidavit without actually offering any contrary or inconsistent evidence. . . . [W]hen the appellant's proof is as specific as is this appellant's, we question whether the Government may ethically assert a contrary position, absent some inquiry upon which to base a good-faith belief that the information tendered is false or inaccurate. That concern aside, the Government clearly places its litigation posture at risk when it does nothing in the face of specific, apparently verifiable facts. That risk, of course, is that this court will find the pleadings and proof of the appellant sufficient to conclude his assignment of error warrants relief.

Id., slip op. at 7 (internal footnotes omitted).

NMCCA then emphasized the specificity of PFC Bush's claims of interference with employment opportunities and found that "appellant's declaration states a claim of legal error and provides adequate detail to permit the Government to validate or dispute his claims." Id., slip op. at 8. NMCCA then turned to the key question in the case -- the question that would lead NMCCA to reach a different conclusion than in its original pre-Allende decision in the case: "The only remaining question, therefore, is whether, in light of Allende, the appellant has adequately substantiated his claim of prejudice." Id. And NMCCA concludes, as post-Allende it must, 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." Id. (internal citation omitted).

Had NMCCA stopped there, its opinion would have been a valuable restatement of the current law regarding post-trial delay. But it went on and provided an additional valuable service: revealing a flaw in CAAF's opinion in Allende.

Quoting CAAF's opinion in United States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006), NMCCA observed that it can find a due process violation even in the absence of prejudice if "the delay is so egregious that tolerating it would adversely affect the public's perception of the fairness and integrity of the military justice system." Bush II, slip op. at 8. NMCCA holds that this is such a case and that PFC Bush's due process rights were violated. Id., slip op. at 8-9.

NMCCA acknowledges that "[h]aving 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. In such an analysis, the burden is on the government to prove lack of harm. See, e.g., United States v. Harcrow, 66 M.J. 154, 160 (C.A.A.F. 2008). NMCCA then offers the illogical argument that because PFC Bush failed "to independently corroborate his assertion of specific employment prejudice or alternatively to provide facts explaining his inability to provide such independent corroboration[,] . . . the Government has met its burden to show that the post-trial error was harmless beyond a reasonable doubt." Bush II, slip op. at 9. As I previously observed, this conclusion appears to ignore the effect of the burden shifting that NMCCA's finding of constitutional error required. This harmlessness analysis 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 is an illogical construction compelled by CAAF's opinion in Allende. Let's revisit Allende to see why CAAF should revisit Allende.

In Allende, 2,484 days passed between the court-martial's adjournment and NMCCA's opinion. NMCCA reduced the sentence due to the delay -- setting aside the total forfeitures and three months of confinement that had already been served. The main issue in CAAF's review of Allende was the propriety of the trial counsel's substitute authentication of the record. CAAF handled the post-trial delay issue almost as an afterthought. And in its truncated handling of the post-trial delay issue, CAAF appears to have misanalysed the prejudice question.

In Allende, where there was seven years of delay between trial and the CCA's decision, CAAF "assume[s] assume error and proceed[s] directly to the question of whether any error was harmless beyond a reasonable doubt." 66 M.J. at 145. CAAF notes that "Appellant asserts prejudice on the grounds that his ability to obtain employment has been impaired because he has not been able to show employers a Department of Defense Form 214 (DD-214), the certificate of release from active duty." Id.

CAAF doesn't appear to doubt that interference with employment opportunities can provide the kind of prejudice required for a post-trial delay claim. On the contrary, CAAF favorably cites United States v. Jones, 61 M.J. 80 (C.A.A.F. 2005), a case in which CAAF noted that it has "often recognized interference with post-military employment opportunities as a form of prejudice that warrants relief for unreasonable post-trial delay." 61 M.J. at 84. So there can be no question about whether Allende attempted to demonstrate the right kind of prejudice -- under CAAF's case law, he clearly did.

What Allende holds is that Petty Officer Allende didn't do enough to demonstrate this kind of prejudice. CAAF observes: "Appellant's affidavit asserts that four employers declined to consider him for employment in the period of August-October 2000, approximately a year after his trial was completed, and that two employers declined to consider him for employment for that reason in 2007. Appellant has not provided documentation from potential employers regarding their employment practices, nor has he otherwise demonstrated a valid reason for failing to do so." Allende, 66 M.J. at 145. The final sentence in this section appears internally inconsistent: "In that context, we conclude that the assumed error was harmless beyond a reasonable doubt and note that Appellant has failed to present any substantiated evidence to the contrary." Id. The flaw is obvious: if a constitutional error is assumed, then it is the government's obligation to prove that the error was harmless. Petty Officer Allende actually did present evidence of prejudice. But simply because it was uncorroborated, CAAF dismissed it entirely. The government appears to have done nothing to demonstrate lack of prejudice. Even if CAAF were justified in discounting Petty Officer Allende's account entirely -- and it isn't at all apparent why that approach is justified in a context such as this where the burden is on the government rather than on the defense -- then there would be no evidence on the question of prejudice and therefore the government would not have disproved prejudice beyond a reasonable doubt.

CAAF's analysis would have been perfectly proper if instead of saying it was assuming constitutional error, it offered this analysis while evaluating the prejudice prong of the Moreno/Barker v. Wingo due process test. At that point, it is the accused's burden to demonstrate a constitutional violation and CAAF could have appropriately found that the accused hadn't carried that burden. It could have then weighed the four factors and found no constitutional violation and thus declined to grant any relief. But CAAF didn't. Instead, it purported to assume constitutional error and then test for harmlessness. But that harmlessness analysis appears not to have actually shifted the burden, as the harmlessness analysis must.

Assuming that PFC Bush files a petition for grant of review, CAAF should grant review in his case to correct its analytical error in Allende. And if it does so, then the court must find that once the burden shifted to the government to show lack of prejudice beyond a reasonable doubt in PFC Bush's case, it didn't carry that burden. Accordingly, relief is warranted for the constitutional violation in PFC Bush's case.