Here is an order requiring the government to show cause in response to a petition for extraordinary relief in a post-trial delay case, Merritt v. Air Force Court of Criminal Appeals, No. 13-8002/AF.  According to Bill James, who surely wrote portions of the petition (here), the case was docketed with AFCCA on Feb. 24, 2010 and has still not been decided.  AFCCA, unbelievably, denied a motion for expedited review filed in Aug. 2012 (which is the basis for the petition).   The petition notes that AFCCA has, or at least had on Sep. 5, 2012, 69 cases pending in which the Moreno 18-month standard had already been exceeded. And then the petition notes (at 7), this even more incomprehensible statistic:

Of the 101 cases in which an issue was raised that AFCCA decided upon initial direct review between 1 June 2011 and 31 August 2012, 40 (39.6%) took longer than 18 months from docketing to render decision.

Is this a Toohey, Moreno, Diaz lesson not learned?

2 Responses to “Did the Air Force Court Not Learn Anything from Its Sea Service Sister Court?”

  1. RY says:

    I’m excited about this petition.  AFCCA has gotten worse and worse.  There are countless folks serving sentences in excess of what they should be serving because AFCCA hasn’t been willing to resolve their cases.  They’ve ignored the statutory priority an Art 62 case is supposed to receive (see US v. Danylo) and then sat idly by while another appellant served more than 8 months beyond her lawful sentence, despite 5 motions for expedited review, and then ridiculously held there was no post-trial due process violation because they decided he case 2 days shy of the Moreno 18 months (despite taking something like 14 months to decide the case after all briefs were in and being put on repeat notice of the issue).  They’d prefer to decide merits cases than cases that actually matter in the greater context.  Regrettably, a number of the judges at fault will be long gone when this is finally ended.  I like the judges personally, but whatever the cause of delays, it has to end.  

  2. Dew_Process says:


    1.  You don’t understand how overworked we are.

    2.  It is really hard work sorting through your conflicting “precedents” trying to come up with an opinion that not only AFFIRMS a clearly defective conviction, but will withstand appellate review by your Court.

    3.  You’re not about to put “justice” back into the “military justice” equation are you, like the Fletcher Court did??

    4.  “Good Order and Discipline” means that we must keep convicts incarcerated as long as possible, even when wrongfully convicted because we’ve got a “message” to send to the field.

    5.  We’re only temporary judges in any event, so don’t hold us to some ridiculous “judicial” standard!

    6.  Moreno doesn’t apply to us for Pete’s sake, he was a Marine and deserved “jarhead justice.”  Besides, Judge Crawford’s opinion was obviously correct, so chill out.  See, Vermont v. Brillon, 129 S. Ct. 1283 (2009).

    7.  Don’t forget how burdensome those Article 69(d) cases are — there used to be one enshrined in our old courtroom, but it got lost in the move so we’ve got to try and “reconstruct the record.”

    8.  Why don’t you ban citations to Canadian military justice cases?  Do you know how burdensome it is to send someone TDY to Ottawa everytime some fool defense counsel cites one?

    9.  Speaking of TDY, it is all your fault!  Do you have any idea how time-consuming (and expensive) it is for us to keep up with your “Project Outreach” excursions?  Without that, we could probably “hire” two more appellate counsel to deal with issues 1 through 8, above, and get our opinions done in about 20 months.

    10.  Last, but not least, a heartfelt “Thank You” for your “harmless error” jurisprudence.  It really helps with those pesky little cases where the MJ just blew it, defense counsel were so ineffective that the SJA couldn’t stop laughing, and government appellate counsel could concentrate on Air Command and Staff College by correspondence.


    El Cínico