In the Army Court of Criminal Appeals latest post-trial delay decision, Etibek (memorandum opinion), ACCA gives back 1 month of confinement already served (and the appellant’s automatic forfeitures for that period). ACCA deemed the appellant’s claims worthy as a result of a 224-day delay in processing between authentication and the SJA’s completion of the SJAR. In this guilty plea, desertion case (you don’t see those too often), the SJA (who is named in the opinion) offered a series of reasons why it took her 224 days to write a two-page SJAR. ACCA didn’t find any of them “compelling to explain why it took the SJA two hundred twenty-four days, on a fifty-seven-page record of trial, to create a two-page SJAR.” ACCA also found prejudice to the appellant’s chances for clemency and parole where there was no action on his case, which resulted in 13 months confinement, for 291 days.
This latter finding, about prejudice to clemency and parole, is something that can probably be said for any appellant with a non-life/long term of years sentence. I wonder if appellant’s will seize on this and run for the payola? More importantly for the system, I wonder if this is the best trend in remedying post-trial delay–awarding post-confinement payola for post-trial delay. AFCCA used the same formula in Miller and CAAFlog has documented countless similar decisions, much to the displeasure of at least one of our readers. If the point of post-trial delay is to punish the government for denial of due process, the pain should be inflicted on the convening authority. Do CA’s really lose any money when CCA orders come down, or is big Navy/Air Force/Army paying? I am guessing the $ flows from the “Lost Battalions” of each service (for those that have not read the Marine Corps Gazette article on the “Lost Battalion,” I commend you to it and one of our reader’s commentary on it here). Any other suggestions to make convening authorities feel the pain? Other than reassigning the offending servicemembers to the command, I can’t think of much that would do the trick if the point hasn’t been made yet.