Thursday, October 23, 2008

Is timely post-trial review a right without a remedy?

CAPT A. R. Philpott, JAG, USN -- the great former director of Code 45 and then CO of Naval Justice School -- had a colorful phrase that's appropriate in this Halloween season: "A right without a remedy is a ghost that stalks the law." Is the right to timely post-trial review turning into such a specter?

AFCCA issued a published decision today. United States v. Preciado, __ M.J. ___, No. ACM 35871 (f rev) (A.F. Ct. Crim. App. Oct. 23, 2008). In Preciado, when the case initially went to AFCCA it ordered a new post-trial action because Senior Airman Preciado's defense counsel during the post-trial review was at least potentially conflicted and the conflict was never resolved. 793 days after AFCCA originally remanded the case to Kirtland Air Force Base, the record finally made it back to Bolling.

In ruling on a post-trial delay challenge, AFCCA assures us that
"[c]onvicted service members are entitled to a timely review and appeal of court-martial convictions." Preciado, No. ACM 35871 (f rev), slip op. at 4. AFCCA then subjected the delay to the four-part Moreno/Barker v. Wingo test.

AFCCA first concluded that "taking 793 days to return the record of trial to this Court after our initial decision on 29 December 2005 is facially unreasonable." Id., slip op. at 5. Next, AFCCA observed that "[t]he government provides absolutely no plausible explanation for this lengthy delay." Id. The court then noted that "[c]onsidering the delay in this case was beyond the appellant's control and his new defense counsel did make several attempts to resolve the issue, we find [the assertion-of-the-right-to-a-timely-review-and-appeal] factor weighs in favor of the appellant." Id. As to prejudice, the court concluded: "[C]onsidering that it took the convening authority at least 18 months longer than it should have to change the findings of guilty of an indecent assault to a finding of guilty of an indecent act, we find that the appellant has experienced some anxiety greater than that anxiety normally experienced by an appellant waiting for an appellate decision. The appellant remained registered as a sex offender in his home state far longer than he would have had his case been properly processed." Id., slip op. at 6.

Wow -- a clean sweep! 4-for-4. One doesn't see that every day. (And in the top of the 9th, it doesn't look like we'll see it in this year's Fall Classic -- sorry Phillies fans.) Since it's a clean sweep, it's not surprising that AFCCA concluded that "our balancing of the four Barker factors leads us to conclude that the appellant was denied his due process right to speedy post-trial review and appeal." Id., slip op. at 7. But wait, there's more. AFCCA continued that even if there hadn't been prejudice, it still would have found a due process violation because "[t]he post-trial processing delay in this case was clearly egregious and illustrates a complete disregard for the constitutional protections afforded to an accused during the post-trial process." Id. The court concluded: "Taking 793 days to complete new post-trial processing after this Court has remanded a case is definitely outrageous and cannot be tolerated." Id. And to show its intolerance for the post-trial delay, AFCCA responds by (drum roll please): doing nothing. The court held that changing the findings or sentence as approved by the CA is neither "appropriate nor warranted in this case." Id., slip op. at 8.

The court did drop a footnote suggesting that when the CA reduced the findings of guilty to an LIO in the second action, he was "likely" motivated at least in part by the post-trial delay. Id., slip op. at n.5. Oddly enough, the previous footnote in the case said the court would assume that the CA would have granted that same findings relief even without the post-trial delay. Id., slip op. at 6 n.4.

So what's the lesson to be drawn from Preciado? That post-trial delay is intolerable? Or that post-trial delay will actually be tolerated?

[Disclaimer: I played a very minor role as a member of the large team of SrA Preciado's appellate defense counsel and my name appears on the opinion as one of his counsel.]


Anonymous said...

Talk about a dog barking with no bite. So the AFCCA finds prejudice under the Wingo factor, but no prejudice otherwise? How did this become a published opinion? And am I wrong or did the AFCCA just comment that advising a client of a percentage of winning at trial is appropriate?

Christopher Mathews said...

"You keep using that word. I do not think it means what you think it means."

-- Inigo Montoya

Anonymous said...

The CCA correctly applied Rodriguez-Rivera and found there was no reasonable, meaningful relief available. Please dismount from your high horse, Caaflog.

Anonymous said...

Were you seriously advocating for windfall relief in this case and thinking that would be considered? Maybe a prayer punitive damages will make its way into your next pleading? It was amusing though.

Anonymous said...

At least the court members are honest that they are rubber stampers who would never go against their government masters.

Cloudesley Shovell said...

Lest you think that the CCAs are just lap dogs for their gov't masters, see US v. Wood, a recent unpublished Navy opinion.

Instead of charging under Art. 134 clause 1 or 2, the gov't charged Wood with possessing child porn in violation of 18 USC 2252A(a)(5)(A). The place of possession was on board the USS Carl Vinson (CVN 70), pierside at Naval Station Norfolk. Wood pleaded guilty.

NMCCA set aside the findings and sentence because "the record is devoid of any evidence or of any judicially noticed material that establishes the waters at or near the piers at Naval Station Norfolk are under the exclusive jurisdiction of the United States."

Anonymous said...

Anon 0919: Is there anything that a creative defense lawyer won't try?

egn said...

How might one find the Wood opinion online?

Anonymous said...

Criminals don't deserve relief. This whole idea of speedy post-trial review is a sham. Why? B/c every one of these leaches on society LOVES their appellate status b/c it confers a lot of benefits. Don't believe for a second they want the process to hurry up so they can get their DD214s that their future Wal-Mart employers await with baited breath. Give me a break.

And CAAFlog, this blog would be much more credible if you and your defense-hack cronies would present the whole story on some of these issues, e.g., the incentive dirtbags have to drag out their appeals. You need more bloggers like J. O'Connor to make this a respectable site.

Dwight Sullivan said...

1750 Anon,

Baited breath? Have they been eating worms?

While I reject your crass lumping of true criminals, malcontents, servicemembers who made mistakes, and -- yes -- some small number of servicemembers who were wrongly convicted into the collective label "dirtbags," in fact this blog has often called attention to the fact that many servicemembers on appellate leave can profit from that status. For example, we looked at and article providing some actual Navy-Marine Corps dollar figures here:

And I have offered the reduction of the number of servicemembers on appellate leave as one of many reasons to streamline the military appellate review system by, among other steps: (1) eliminating the CCAs and thereby creating a faster, more efficient one-level sub-SCOTUS review system; and (2) adopting the JO'Cian waiver of appellate review proposal.

I've spent about half of my legal career as an active duty, reserve, or civilian military appellate defense counsel. And I can definitively say that there are some servicemembers who really do want to speed up execution of their discharges and are harmed by failure to obtain their DD-214s. For example, some servicemembers have job offers from employers who would give them a job if they produced a DD-214 regardless of what it says on the DD-214. The employer's concern isn't the characterization of discharge or reenlistment code, but rather obtaining some assurance that if the employer spends thousands of dollars training the applicant, the money won't walk out the door because the military then grabs the applicant back and sends him or her to Iraq. There are many other servicemembers on appellate leave -- and certainly a far larger group than the first -- who take advantage of their appellate leave status to obtain military benefits, such as health care. And there is a very large group of servicemembers on appellate leave who are indifferent to their appellate leave status.

Anonymous said...

Cloudesly, don't the waters at or near the piers at Naval Station Norfolk belong to the Confederacy? If so, NMCCA got it right.

Oh, Fri Oct 24, 05:50:00 PM EDT Anon, you are projecting. You know deep down that you yourself have committed criminal acts in the past. Sure, the world does not know about these secret crimes, but you know (whether it was underage drinking, stealing that candy bar, speeding, parking in that handicapped space, being late for work, lying, whatever). You got away with it. So we understand your unconstrained need to yell at your other "dirtbag" self. Your moral smugness speaks in its own language.

Anonymous said...

Being a legal officer, not a JAG, I am always interested to read this blog. The military defense attorneys I know (and I have worked with a lot of them) seem to relish in keeping criminals in the service through trickery and technicalities. Yet they wear the uniform and claim to be honorable officers. Can anyone explain this to me? Do they really want these people in the same service they are?

Anonymous said...

0818 Anon,
The defense attorneys you speak of are protecting rights afforded in a document you may have heard of -- the Constitution (it's the same document you swore an oath to protect). And the "technicalities" you mentioned wouldn't exist if the Government JAGs and legal officers followed the rules. Finally, the defense attorneys have an ethical duty to force the government to follow those "technicalities" (otherwise known as rights afforded by law or regulation), or they would lose their license to practice law, and their commission in the service.

Dew_Process said...

"And CAAFlog, this blog would be much more credible if you and your defense-hack cronies would present the whole story on some of these issues, e.g., the incentive dirtbags have to drag out their appeals."

My my! Now there's a frustrated Trial Counsel, who seems to have slept through Con Law.

I am proud of my "defense-hack cronies," John Adams, who defended Captain Preston and the British troops accused in the Boston Massacre; or Abe Lincoln who successfully defended numerous clients; or Charlie Swift who courageously defended Hamdan.

I've been doing this for a LONG time, I made an appearance in 9 MJ, which was 4 years into my AD. I have never had a client be happy with Appellate Leave - especially after they're done doing their "time."

And one more thing anon 1750, everytime you hear or sing the "Star Spangled Banner," cogitate on the fact that another of my "defense-hack cronies" wrote it, Francis Scott Key, after successfully negotiating the release of an American POW the Brits had captured!

Dew_Process said...

"The CCA correctly applied Rodriguez-Rivera and found there was no reasonable, meaningful relief available. Please dismount from your high horse, Caaflog."

This is turning into "Defend Dwight" day..... but, he is one of the "cronies!"

Anon 0653 - there was indeed reasonable and meaningful relief available to the Court of Criminal Affirmation, one that would eliminate the problem of excessive post-trial delay.

The Court could have appointed a Special Master to investigate those persons responsible for the excessive delay, and to prefer charges under Article 98, which is ONE of the purposes behind the enactment of that Statute, not to mention some serious dereliction of duty!

Anonymous said...

Ironically, this decision has the effect of encouraging truly egregious post-trial processing because if the CA or court simply waits long enough accused is out of confinement, no meaningful relief is provided and no sentence reduction. This decision wouldn't make sense to a third-grader, nor should to experienced counsel and judges.

Dew_Process said...

Anon 0552 - VERY good points. I hope that Dwight's crew can convince CAAF to grant review here. This is also a good case for Amicus Briefs!