Here’s a phrase one doesn’t often see: 42-page unpublished opinion. But that’s what United States v. Schweitzer, No. NMCCA 200000755 (N-M. Ct. Crim. App. May 10, 2007), is. NMCCA remands the case for a DuBay hearing to determine whether the SJA and Deputy SJA were too aligned with the prosecution to properly provide the Staff Judge Advocate’s Recommendation. In the alternative, NMCCA authorizes remanding the case for a new CA’s action by a new convening authority upon advice from a non-disqualified SJA. The court reasoned:
The facts before us are sufficient to raise a colorable claim that the SJA who prepared the SJAR and addenda thereto became “embedded” with the prosecutorial effort in this case to an extent that it may have transformed his interest in the outcome to a personal one. Certainly, the numerous testimonials submitted in support of this assignment [of error] have given rise to a clear appearance that the SJA became an advocate for the prosecution. In order to determine whether the SJA should have disqualified himself from preparing the SJAR and the addenda thereto, we believe that further impartial fact-finding on this matter is required.
Slip op. at 28.
NMCCA rejected an argument that General Pace, then the CG of MarForLant, was disqualified from serving as CA because he was a type-II or type-III accuser. The court also held that General Pace was not disqualified from taking the convening authority’s action in the case.
The section of Senior Judge Rolph’s opinion for the court rejecting a UCI issue has a nice line: “Though we often recognize the military trial judge as the ‘”last sentinel” to protect the court-martial from unlawful command influence,” United States v. Rivers, 49 M.J. 434, 443 (C.A.A.F. 1998), the judges of the service courts of criminal appeals and the Court of Appeals for the Armed Forces have clearly demonstrated that they will actively serve as ‘force multipliers.'” Slip op. at 21.
NMCCA also resolves an issue of first impression in the naval justice system, making it even more odd that this 42-page opinion is unpublished. NMCCA rejected a challenge to the providence of the guilty plea, reasoning that an attempt to interfere with a foreign criminal investigation can constitute obstruction of justice. Slip op. at 28-34.
But the opinion is probably most remarkable for its sua sponte self-flagellation over its own pace in resolving the case (pun intended). In language that makes me think of Arthur Dimmesdale, NMCCA confesses:
We have carefully and thoughtfully evaluated each individual segment of post-trial delay in this case. Especially disturbing is the length of time our own court has taken to issue this opinion after briefing of the case was completed — a period of over three and a half years. This was due in large part to the retirement of the originally assigned lead judge before that individual could author an opinion, necessitating Article 66, UCMJ, review ab initio by a newly assigned lead judge. It was also the result of this court failing to exercise diligent oversight of individual case processing timelines during much of the period of our handling of this appeal. Delay of this nature is simply inexcusable and represents an abject failure in the performance of our critical duty to provide every appellant “even greater diligence and timeliness than is found in the civilian system” as regards their appeal of right. Toohey I, 60 M.J. at 102. Though our superior court has generally applied a “more flexible” review of delay occasioned by the Courts of Criminal Appeals in the exercise of their judicial decision-making authority, see Moreno, 63 M.J. at 137 (citing Diaz, 59 M.J. at 39-40) and United States v. Dearing, 63 M.J. 478, 486 (C.A.A.F. 2006)), the gross negligence and lack of institutional vigilance we today acknowledge warrants only harsh condemnation.
Slip op. at 40.
The court nevertheless finds beyond a reasonable doubt that the delay caused no prejudice to the appellant, who pled guilty and whose sentence was limited to a dismissal. Slip op. at 41. But the court holds open the possibility of reaching a different conclusion or granting Tardiff sentence appropriateness relief when the case returns either from the DuBay hearing or with a new CA’s action. Id.