Monday, February 23, 2009

NMCCA denies government motion for expedited ruling in Chessani Article 62 appeal

We've often discussed the court-martial of LtCol Jeffrey R. Chessani, USMC, and the government's appeal that followed Judge Folsom's ruling dismissing the charges against him without prejudice. See, e.g., here, here, and here.

The Government's Article 62 appeal in the case was orally argued on 17 October 2008. Congress has provided that "whenever practicable," Courts of Criminal Appeals shall give Article 62 appeals "priority over all other proceedings before that court." Art. 62(b), UCMJ. Yet NMCCA hasn't issued a ruling in the Chessani case.

I understand that last week, four months after the case was argued and eight months after Judge Folsom ordered charges dismissed without prejudice, appellate government counsel filed a motion for an expedited ruling in the case. And I understand that NMCCA denied that motion the day after it was filed.

Given that the dismissal of charges was without prejudice, I'm still perplexed by why the government appealed the ruling. LtCol Chessani's court-martial would be over by now if the case had simply been turned over to a different CA. The argument is often made that the military justice system can't provide all the protections of a civilian system because there is a special need for speedy disposition of charges in the military. But here's the government itself making a decision that needlessly prolonged the court-martial process.


Anonymous said...

Wait until App Gov appeals if they lose at NMCCA, or Appellant appeals a loss. That will add another 8 months, at minimum.

Ivo of Kermartin said...

Imagine that, a CCA would deny a motion for expedited review. The Government is, in effect, suggesting NMCCA is in violation of Art 62(b). Obviously the Court does not share that opinion.

Anonymous said...

Why does the government appeal? Because they believed the MJ was wrong. The government should not be required to factor in NMCCA's disregard for the expedited nature of the Art. 62 process. If (this is the debatable point and why the case was appealed) the MJ was wrong why should the government have start from square one? If the MJ is wrong then he should not be allowed to pick the government's strategy.

Dwight Sullivan said...

Anon 2219,

So what if the military judge was wrong? (I'm not saying that I think he was -- I haven't studied the merits of the case closely enough to have an opinion either way. But let's assume for the moment that he was.)

The judge's ruling didn't establish any precedent. Judges make mistakes every day. Appellate courts routinely affirm convictions despite trial judges' mistakes, observing that the accused isn't entitled to a perfect trial. Why is it so important to correct this mistake that it's worth dispensing with efficiency? Is this appeal really a good use of military counsel's time? Of the military court's time? Is the delay in resuming the trial in the government's interest? If not, then I think the government has used the system's resources unwisely.

Anonymous said...

I had a long post started, but decided to go short.

The .mil is happy with the way things are right now. The O-5 can't get promoted or a command, and as long as things are stalled the CA can finish up this assignment and move on without any chance of egg on his face.

Win-win, except for the defendant.

Anonymous said...

Not really a win for the military. They have an 0-5 who should, 1) be able to continue his career (or retire) or 2) face a court-martial. Having him in limbo isn't a win for the government.

Anonymous said...

Any CA who doesn't want to have a case decided on his watch for fear of egg on his face lacks the moral fortitude of leadership expected of flag/general officers. For this CA's sake I hope that the anonymous comment is just an example of blustering and not an indication of the actual thinking of the government.

Dew_Process said...

In the USMC, who makes the decision on whether or not to take an Art. 62 appeal? Appellate Gov't, the SJA or TC?

At this juncture, why doesn't the Gov't just withdraw the appeal, get a new SJA and CA, and proceed? That would "cure" the UCI issue as I understand it, unless I missed something from the Order dismissing the case, that I read months back.

Anonymous said...

Why withdraw now? NMCCA is now on the hot seat to get the case processed.

I understand the debate as to what the quickest resolution would have been which was to start at square one. However, the government chose not to do that (and they have more facts than any of us reading the papers filed in court). The government has the right to appeal the decision and did that.