I know — usually “important unpublished opinion” is an oxymoron, but not today. NMCCA released an unpublished decision setting aside a rape conviction as factually insufficient, setting aside the remaining convictions due to cumulative error, and providing major relief based on appellate delay. United States v. Foster, No. NMCCA 200101955 (N-M. Ct. Crim. App. Feb. 17, 2009). Judge Maksym wrote for himself and Senior Judge Couch and Chief Judge O’Toole. While fully joining in the opinion of the court, Chief Judge O’Toole also authored a concurring opinion expressing his thoughts about the appellate delay issue. The opinion is available here.
Sgt Foster was convicted of raping his wife five years before his court-martial, as well as a couple of specs of aggravated assault and communicating a threat. The rape conviction was based entirely on his wife’s testimony (after the allegation arose during a contested child custody case) and prior consistent statement evidence. On the other side of the ledger, Sgt Foster and his wife continued to have sexual relations after the alleged rape, apparently including on videotape. He received a sentence that included confinement for 17 years and a DD.
NMCCA’s Foster opinion twice suggests that it is reversing the rape conviction on both legal and factual sufficiency grounds, but it seems pretty clear that it actually reversed the conviction only on factual sufficiency grounds. Compare id., slip op. at 3 (“We conclude that the appellant’s conviction for rape cannot withstand the test for legal and factual sufficiency and dismiss it with prejudice.”), and 5 (“In his first assignment of error, the appellant contends the evidence that he raped Heather Foster was legally and factually insufficient. We agree.”), with id., slip op. at 7 (“Considered in the light most favorable to the Government, a reasonable member could choose to believe the victim, and to disbelieve evidence inconsistent with guilt”; and “we hold that his conviction of rape was factually insufficient”).
The court then proceeded to reverse the other convictions as well, finding cumulative error. First, the court found plain error in a government expert witness’s testimony during which she essentially offered expert opinion that the charged offenses occurred. In a nice turn of phrase, NMCCA observed that the witness, Dr. Rusher, “adopted the facts as advanced by the alleged victim and cloaked them in a physician’s white coat, presenting them as scientific findings to the members.” Id., slip op. at 10. NMCCA then concluded that “the military judge was unable to ‘unring the bell,'” despite trying to do so by giving the members a curative instruction. Id., slip op. at 12.
The court also noted that the military judge permitted the members to hear testimony of the alleged victim’s six-year-old son, only to then learn that he “had not been born at the time of one of the charges about which he was testifying, and that he was approximately two years old at the time of the most recent alleged act.” Id., slip op. at 13. The military judge then ordered the boy’s testimony stricken and instructed the members to disregard it. NMCCA concluded that the combined “errors call into question the fairness of the appellant’s trial.” Id., slip op. at 14. The court therefore vacated the findings. Id.
Now here’s the really interesting part. Having set aside and dismissed the rape conviction and set aside the remaining convictions 10 years into the accused’s 17-year sentence, NMCCA went all Reverend Dimmesdale on itself, self-flagellating over unreasonable appellate delay. While noting unreasonable delay by just about everyone involved in the case’s post-trial processing, NMCCA reserved its harshest words for itself. In applying the second Barker v. Wingo factor, the court concluded: “the bulk of delay in this case is attributable to the manner in which this court failed to properly advance this litigation. The delay incurred by this court’s ineffective action amounts to nothing less than judicial negligence.” Id., slip op. at 17. The court also concluded that Sgt Foster was severely prejudiced by the delay, observing that “the appellant has served nearly ten years of confinement, in part, for an offense of which he should not have been convicted.” Id., slip op. at 18. NMCCA concluded that the appellate delay violated Sgt Foster’s due process rights and that the violation wasn’t harmless. To remedy that violation, NMCCA capped the authorized sentence at any rehearing on the undismissed charges at a punitive discharge. Id., slip op. at 19.
In his separate concurrence, Chief Judge O’Toole again flayed everyone involved in the case’s post-trial processing, lashed NMCCA the hardest, noted improvements that the Judge Advocate General of the Navy had made to avoid a repetition of such delay, and called on everyone in the system to remain vigilant. Id., slip op. at 19-20 (O’Toole, C.J., concurring).
With its useful discussions of both cumulative error and appellate delay, Foster seems destined to become one of the most frequently cited unpublished CCA opinions.