In years past, at this time in the summer the Court of Appeals for the Armed Forces would finally be issuing opinions of some precedential value, while still holding the major decisions until September 30th. But with Chief Judge Effron keeping the trains running on time, and with the next decision not expected until October at the very earliest, military justice is adrift in the doldrums.
With a BoSox World Series appearance all but guaranteed, I decided to peruse the latest opinions out of the Courts of Criminal Appeals. I came across an interesting opinion from the N-MCCA written by Judge Couch the Wise (JCTW). United States v. Rodriguez, No. 9900997 (N-M. Ct. Crim. App. July 17, 2007), is an unpublished opinion. What makes it interesting, is that two of the judges, Judges Vollenweider and Stolasz, felt it necessary to write a separate concurring opinion on the issue of post-trial delay in an unpublished decision.
The case involved a prior remand from the N-MCCA. Because his original court-martial took place in 1998, Gunnery Sergeant Rodriguez raised the issue of post-trial delay as one of his seven assignments of error. As a member of the court that bore the brunt of the CAAF’s decision in Moreno, JCTW begrudgingly enforced the decision. When discussing the Appellant’s argument that much of the delay was due to his previous appellate defense counsel’s “other caseload commitments,” JCTW had this to say: “We note that appellant’s claim is based upon his appellate defense counsels’ assertions contained in their ‘boilerplate’ motions for enlargement of time, and not upon any sworn affidavits or other sources of evidence.” According to the Court, “the record contains no explanation for this period of delay other than the pro forma averments of counsel in their motions for enlargement of time.” Those familiar with the Moreno decision will recall that these “boilerplate” and “pro forma” assertions were found to be “sufficient evidence” that the delay was due to the manning at the appellate defense division during the first half of this decade in that case. But, perhaps because he too was familiar with the Moreno decision, JCTW followed the decision. “However, based upon the precedent set by our superior court, we are constrained to not hold the appellant” responsible for this delay. It is here that the opinion gets interesting.
Judges Vollenweider and Stolasz wrote separately to add their thoughts on CAAF’s decision in Moreno, thoughts that JCTW was apparently unwilling to include in the Court’s opinion. While the two judges agreed that the United States had a responsibility to properly staff the appellate defense division, they took issue with the “boilerplate unsworn statements from appellate defense counsel that other caseload commitments prevent the filing of a brief” at issue in Diaz, Toohey, Moreno, and Rodriguez. According to the two judges, such averments of counsel do not constitute a record “from which to draw a rational determination that the Government failed in its duty” to staff the appellate defense division. In a footnote, they “observed” that the Federal Circuit Court Cases cited by the CAAF in Moreno were “replete with developed facts, not mere assertions of counsel.” Judge Vollenweider then claimed that the Court itself had solved the post-trial delay problem: “My sense is that as this court’s rules have changed to require recitation of specific facts in order for a party to establish good cause for an enlargement of time, counsel have focused on proper prioritization of their time, resulting in far fewer motions for excessive enlargements.”
Because neither Judge Vollenweider nor Judge Stolasz were on the N-MCCA in 2003 when Diaz v. JAG of the Navy, 59 M.J. 34 (2003), was decided, they should be forgiven for not reading the appendices to the decision, which are now published in the Military Justice Reporters and are replete with “developed facts” including the caseload of appellate defense counsel, the methods those attorneys used to manage that caseload, data on filing times, the funding and appointment system, and a letter from the Chief Judge of the N-MCCA, Colonel Dorman, begging the Judge Advocate General for more resources. They would also have the letter from the Division Director of Appellate Defense, Captain Cooper, pleading for more resources and the adequate manning of the defense division.
Unfortunately, despite four years of litigation and warning shots from the CAAF in Diaz and Toohey, the appellate defense division was not consistently kept at full strength until after the Moreno decision last term. Not surprisingly, the backlog vanished in less than a year. This had nothing to do with the rules of the N-MCCA, which those at the appellate defense division tell me only generated more work, but rather the division being staffed with eighteen active duty counsel instead of the seven serving in the division when Diaz was announced. The average caseload at the division is now roughly ten cases per attorney and not the seventy to one hundred cases carried by each attorney in 2003-2004.
What is truly disturbing is that, on a record so developed as the one in Rodriguez (admittedly through the voluminous documents regarding the state of the division available in the military justice reporters), two judges of the N-MCCA still believe that post-trial delay was caused by lethargic counsel who were willing to perpetuate a fraud on the military justice system by filing fraudulent enlargements and by an N-MCCA who was complicit in the whole affair by not changing its rules. It is nothing less than a travesty that the N-MCCA did not change its rules sooner, before Marines like Moreno served all of their lengthy prison sentences before being pronounced victorious in a meaningless ritual.