In United States v. Jones, 61 M.J. 80 (C.A.A.F. 2005), CAAF held that economic harm was a legally cognizable form of prejudice for post-trial delay purposes. Jones was a 4-1 opinion, with Judge Crawford delivering this stinging critique in dissent:
In concluding that Appellant has suffered prejudice, the majority disregards not only our precedent requiring a showing of actual prejudice, United States v. Jenkins, but also common sense.
United States v. Jones, 61 M.J. 80, 87 (C.A.A.F. 2005) (Crawford, J., dissenting).
The Jones majority opinion observed, “We have often recognized interference with post-military employment opportunities as a form of prejudice that warrants relief for unreasonable post-trial delay. The record indicates that as a result of the unreasonable post-trial delay, Appellant has suffered this form of prejudice.” United States v. Jones, 61 M.J. 80, 84 (C.A.A.F. 2005) (footnote omitted) (citing United States v. Sutton, 15 M.J. 235 (C.M.A. 1983); United States v. Gentry, 14 M.J. 209 (C.M.A. 1982) (summary disposition); United States v. Clevidence, 14 M.J. 17 (C.M.A. 1982)). The majority specifically noted that this interference with employment opportunities “demonstrates prejudice for purposes of Article 59(a), UCMJ.” Id. at 85-86.
In Thomas (an opinion I found on NKO but nowhere else), NMCCA observed: “We find that the appellant was impaired in his ability to search for and apply for jobs by the dilatory post-trial processing of this case. This amounted to some harm short of legal prejudice.” United States v. Thomas, No. NMCCA 200500939, slip op. at 3 (N-M. Ct. Crim. App. Aug. 30, 2006), rev’d, __ M.J. ___, No. 07-0138/MC (C.A.A.F. Apr. 27, 2007) (summary disposition). This analysis seems clearly inconsistent with Jones, which is strange considering that NMCCA’s Thomas opinion actually cites Jones at one point. See id., slip op. at 1.
So it is no surprise that in a daily journal entry posted today, CAAF summarily reversed Thomas and remanded the case to NMCCA “for consideration in light of United States v. Jones, 61 M.J. 80 (C.A.A.F. 2005) and United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997).” CAAF’s summary disposition is notable, however, for being unanimous — which a similar order issued last term almost certainly would not have been. What is uncertain looking in from the outside is whether this reflects broader jurisprudential agreement or enhanced collegiality.