In United States v. Walker, 66 M.J. 721 (N-M. Ct. Crim. App. 2008), NMCCA reversed a premeditated murder conviction and death sentence because the military judge erroneously denied a defense continuance request. On Thursday, in this unpublished opinion, ACCA set aside an officer’s conviction and sentence because the military judge erroneously denied a continuance request. United States v. Fiorito, No. ARMY 20080535 (A. Ct. Crim. App. March 3, 2011). Senior Judge Conn wrote for a unanimous panel.
The opinion suggests a growing level of animosity directed by the military judge toward First Lieutenant Fiorito’s civilian defense counsel. The military judge ultimately denied a series of continuance requests by the civilian defense counsel. The military judge then denied a continuance request by the accused’s IMC, who had been on the case just a little more than two weeks when it was tried with the IMC apparently acting as the accused’s sole defense counsel. ACCA held that the military judge abused his discretion by denying a continuance request from the IMC, who clearly had an inadquate opportunity to prepare for trial through no fault of his own. ACCA concluded:
[W]e are compelled to conclude the military judge predicated his ruling on the facts and circumstances presented by the CDC, rather than weighing and considering those pertaining to [the IMC]. This was patently evident by his failure to make any essential findings of fact required by R.C.M. 905(d) in support of his ruling to deny [the IMC] the continuance he requested. Consequently, the facts compellingly demonstrate that the military judge abused his discretion in forcing an unprepared counsel to proceed to trial, thereby prejudicing appellant’s material rights.