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.]