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Monday, June 15, 2009
CAAF speedy trial grant
CAAF has granted review of a speedy trial issue: "WHETHER THE ARMY COURT ERRED WHEN IT RULED THAT APPELLANT'S RIGHT TO A SPEEDY TRIAL UNDER ARTICLE 10, UCMJ, WAS NOT VIOLATED." United States v. Thompson, __ M.J. ___, No. 09-0145/AR (C.A.A.F. June 11, 2009). An unpublished ACCA decision granting an Article 62 appeal in the case is available here. United States v. Thompson, No. ARMY MISC. 20060901 (A. Ct. Crim. App. Nov. 30, 2006). I assume there's a more recent ACCA opinion in the case, but I can't find it online.
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8 comments:
At the risk of sounding critical, may I ask what other appellate attorneys think of how the question presented is worded here?
To me, there is nothing negative about the wording. Its a perfectly sterile QP. But how long was the delay? Shouldn't a QP at list HINT at the right answer? (Or was this issue just granted to start moving the pendulum back?) I wonder how Garner or some others would suggest improving this QP.
And, hey, CAAF granted...so I am not losing perspective here that this is more semantics and tweaking the persuasive arts.
As a trial defense counsel, I would always rather have a speedy trial issue to litigate than an actual speedy trial.
Not to go into too much of a war story (because we all have them), but I used a speedy trial request to actually get a speedy trial where othewise I'm sure the legal office would have taken their own sweet time to arrange the court.
Basically, an Airman who had alot of potential except for a drug addiction was being court-martialed a second time when his first confinement UA came back positive. The legal office just had to have a second court and were going at their usual snails pace organizing the 2nd court. (And I'm sure wouldn't have minded more relapses so they could get bigger sentence the second time around.)
So we made the speedy trial motion to light a fire under the legal office and we got it.
Anon, nothing can compare with mine and others experiences at Hurlburt when Von Wald was the SJA for AFSOC.
Hurlburt where everything is a General Court Martial was the butt of many jokes.
Even when I was detained in Pensacola the Guards asked what branch I was in, when I told them the AF, there reply was, "Oh, your gonna be here a while". The Marines in there were getting trials in 1-2 months WITHOUT a speedy trial request.
Then there was US v. Tarver. This guy got a slap on the hand for drug use. Pleading guilty the judge did not give him a BCD. This of course made Von Wald very angry that an accused pleading guilty Judge Alone didn't get the kick.
So guess what this guy does? Uses the CA post action to disapprove the findings so he can court-martial Tarver again.
They also came up with "perjury" charges arguing that Tarver lied during his Providence Inquiry in order to diminish his guilt.
The Judge on the second trial found him guilty of the original sentence, and gave him less time and no BCD.
Of course he waited over a year.
Then there was Schrier. A case where an Article 15 for drug use (there were no positive urinalysis) was turned downed, the accused waited for trial.
He was taken off his regular job and placed to work in the recycling/garbage center on base.
While he waited the accused racked up UA and drunk driving charges.
Of course when you are waiting over a year for trial picking up trash how could you not become an alcoholic.
I do think, no strike that, I KNOW it is a trial technique that they purposely drag their feet.
The ACCA decision on 6 OCT 2008 was, of course, a summary affirmance.
I was being more tongue-in-cheek about the legal office intentionally delaying a case. I don't know about the other services, but I think AF legal offices go slower because they give every JAG in the office a case to prosecute. So you don't get the efficencies that you have if one JAG is trial counsel for all the cases. In the AF it's always someone's first time doing any particular procedure.
Anon 1108
Socrates - while my Garner's at home, I agree with your assessment. Why not add the simple phrase after "Was not violated, after 770 days?" or whatever the specific number was.
I think from what I've heard and seen from the other services indicate that the Air Force is more bureaucratic, there is certainly more red tape to weave around. when it comes
For example let's take something as simple as preferring charges.
If you look at a AF charge sheet you'll see 9 out of ten times no one lower than a o-4.
Yet in the other services I have seen enlisted men with their signatures on the charge sheets.
In my case this led to some delay as the legal office in Hurlburt wanted to wait until a courtroom was open on their base and waited until an O-4 signed the charge sheet.
As the Judge noted other courtrooms at Eglin and Pensacola were open, but the possibility of setting the court-martial their never was seriously entertained.
Also the legal office complained of a high case load, but with cases like Schrier and Tarver one thing is clear:
They do it to themselves.
The Air Force prosecutors can't complain of long delays and high volume of cases when they are making anything into a General Court Martial. They complicate things by bringing in charges that they should stay away from. The "Keep-it-simple-stupid" approach to charging cases should be followed.
Having said all of that a simple look at the case loads over the years and you'll see a dramatic drop in cases recently.
Is it because we have less criminals? Less people? To what does the AF owe the drop in prosecuted cases?
Having
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