Post-Trial Delays

Today, the Navy-Marine Corps Court posted 13 cases, that were issued between 17 and 31 July, to its public website. Most, if not all of these cases have been available on NKO for some time.

In United States v. Wiest, No. 200700024 (N.M. Ct. Crim. App. Jul. 31, 2007), the NMCCA was faced with a case that had taken 2,734 days (about 90 months, or 7 1/2 years) from announcement of sentence until docketing at the court. That's right, docketing, not decision by the AFCCA. The sentence was adjudged on 2 August 1999. From sentence announcement to decision was two days short of 8 years.

A military judge sitting as a general court-martial convicted the appellant, pursuant to his pleas, of thirteen specifications of larceny and three specifications of forgery, in violation of Articles 121 and 123, Uniform Code of Military Justice, 10 U.S.C. §§ 921 and 923. The appellant was sentenced to confinement for thirty months, forfeiture of all pay and allowances, reduction to pay grade E-1, and a dishonorable discharge.

The court first examines the appellant's sentence and determines it is not unduly severe and in fact "richly warranted." The court explains its decision by quoting United States v. Usry, 9 M.J. 701, 703 (N.C.M.R. 1980) (internal citation omitted.

Larceny is commonly recognized at common law as a serious felony crime. . . . Larceny crimes strike at the very heart of society's ability to exist as a community, and this is certainly no less important in a military community. It is commonly recognized that the crime of larceny against a fellow service member takes on even more significance in the military community where the very lives of men at arms often rest upon the complete trust and confidence of their fellow combatants. This trust is emphasized and nurtured in the United States Marine Corps from a Marine's first experiences in bootcamp and throughout his Marine Corps career. Basic to this philosophy is an expectation that your batterymate will not steal from you.

The court then examines the claim of post-trial and appellate delay. It finds the 7 1/2 years to be facially unreasonable and then examines the Barker v. Wingo factors. The NMCCA finds the length of the delay and the reasons for the delay favor the appellant. But the appellant apparently did not complain until he filed his appellate brief and there is no evidence the appellant suffered any prejudice. After balancing the factors, the court concluded there was no due process violation.

And finally, the court considers whether it should exercise its Article 66(c) power to reassess the sentence to give the appellant some relief. The court states that the only meaningful relief available for them to give is to disapproved the DD. They refuse to do that because it "would be an undeserved windfall for the appellant and disproportionate to any possible harm the appellant suffered as a result of the post-trial delay."

In United States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006), the CAAF stated that: Absent prejudice, this Court "will find a due process violation only when, in balancing the three other factors, the delay is so egregious that it would adversely affect the public’s perception of the fairness and integrity of the military justice system.” Isn't 7 1/2 years so egregious that it adversely affects the public's perception of the fairness and integrity of the military justice system? But what the CAAF giveth in one hand it taketh away with the other. If there is a violation of due process then you look to see if the violation was harmless beyond a reasonable doubt. United States v. Allison, 63 M.J. 365, 370-71 (C.A.A.F. 2006). Thus, you seem to be back to the question of prejudice

Although I think the CAAF's heart may have been in the right place in trying to force the military to get accuseds the expeditious post-trial and appellate review of their cases they deserve, I believe the court's resolution of the problem is not well thought out.

Article 59(a) states that: "A finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused." How can CAAF suggest that relief is necessary if there is no prejudice. And if there is such a thing as a due process violation if the delay is so egregious it affects the perception of the military justice system, how can a court grant relief when affecting the perception of military justice does not necessarily materially prejudice the substantial rights of the accused."

I also think the situation may be exacerbated by Article 58a and 58b. Article 58a provides that "Unless otherwise provided in regulations to be prescribed by the Secretary concerned, a court-martial sentence of an enlisted member in a pay grade above E-1, as approved by the convening authority, that includes" a punitive discharge, confinement or hard labor without confinement automatically reduces that member to pay grade E-1, effective on the date of that approval. Article 58b provides among other things that a sentence to more than 6 months confinement leads to automatic forfeiture of pay.

Although the NMCCA did not explain why the only meaningful relief would be disapproval of the DD, I take it that it stems from the Article 58a automatic reduction to E-1 and the Article 58b automatic forfeitures. Otherwise, I see no reason the court could not have crafted some relief by disapproving some or all of the forfeitures and some or all of the appellant's reduction in grade. Is there some case or rule that says the CCAs can't mess with automatic reduction or forfeitures?

I believe the delay in Lance Corporal Wiest's case is egregious and outrageous and he deserves some relief. But I don't see how CAAF can order a remedy under the statutory authority under which it operates. Fixing this problem needs congressional action.