Foster is a rarity: a truly significant unpublished decision. United States v. Foster, No. NMCCA 200101955 (N-M. Ct. Crim. App. Feb. 17, 2009). The decision is an important one on a micr0-level. It held that a Marine was convicted of raping his wife against the weight of the evidence. Foster was also a demonstration of the military justice system’s 800 pound gorilla’s power. Rarely do the CCAs use their power to set aside legally sufficient but factually insufficient findings of guilty. But this was such a case,–though there’s some language in the opinion that suggests the findings were legally insufficient, though more direct language seems to go the other way.
Sgt Foster, who served nine years for a crime that the Navy-Marine Corps Court determined he didn’t commit, became the poster child for the military justice system’s appellate delay problem. In its opinion, NMCCA criticized itself for unreasonable delay, which it characterized as “judicial negligence.” Id., slip op. at 17. The Senate Armed Services Committee used Foster as proof “that cognizant legal authorities in the Department of the Navy have not taken necessary and appropriate steps to ensure that the resources, command attention, and necessary supervision have been devoted to the task of ensuring that the Navy and Marine Corps post-trial military justice system functions properly in all cases,” as we discussed here.
But the curious thing is that, as Chief Judge O’Toole discussed in his Foster concurrence, by the time the case was decided, the scourge of unreasonable appellate delay had largely been eliminated from the naval justice system. This occurred for several reasons. One is that the Office of the Judge Advocate General of the Navy brought in increased manpower to drive down the system’s backlog. Then, in a happy turn of events, the rate at which cases were docketed plummeted. And all this occurred shortly after CAAF gave a wake up call to the system with its Moreno opinion. And the good new reaches beyond the naval justice system. The Air Force has also seen a marked decrease in appellate backlog. I’m not familiar enough with Army appellate practice to know whether it has experienced a similar decline in quantity of cases and length of delay. Army Lurker, can you fill us in?
So Foster serves as a reminder of the bad old days, though Congress may still require the Department of the Navy to drink cod liver oil even after the disease has been cured. Perhaps that will serve a purpose, though. The stock market has recently been suggesting that it can’t go down forever. Is the same true of the military appellate courts’ case intake numbers?