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  On Thursday, in this unpublished opinion, ACCA set aside an officer’s conviction and sentence because the military judge erroneously denied a continuance request.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. 

7 Responses to “It only continues”

  1. Charles Gittins says:

    Once I read the opinion, I was unsurprised that the MJ was reversed. Been there in another case.

  2. bill almett says:

    What in the hell is wrong with that judge?

  3. JTS says:

    Forgive me for asking, but if the MJ’s main issue for not granting a continuance was that a unit was being prevented from redeploying, why not move the trial back to the states? Or would there have been an even bigger procdural problem because that would have required a change in CAs? Couldn’t they just have re-referred under a stateside CA?

  4. Michael Lowrey says:

    JTS, looks as if big factor was that there were a lot of potential witnesses, and they would all tend to scatter once the unit got back stateside, making it difficult to get everyone involved back to one place at one time for a trial. That this was (apparently) an activated National Guard unit probably just made that all the worse.

  5. Cheap Seats says:

    Well, those witnesses are certainly scattered now!

  6. Dew_Process says:

    Mr. Almett: It appears that he contracted the deadly disease of “Black Robe Fever:”

    “Black Robe Fever is . . . that dread disease which may destroy the integrity of any judge – state or federal. A judge who prides himself on being inconsiderate and discourteous to the point of being tyrannical has
    contracted the Fever, and it is fatal: it leads to death of the mind.”

    From John Stevens Berry’s great book, Those Gallant Men: On Trial in Vietnam, p. 70 (Presidio Press, 1984).

  7. Cap'n Crunch says:

    This issue has already been addressed (mostly) by CAAF.

    http://www.armfor.uscourts.gov/opinions/2004Term/03-0106.htm

    Same result. MJ’s need to be really careful not to deny reasonable requests for a delay for the purpose of acquiring civilian counsel.