Scott Horton’s TruthOut article was the last MilJus related activity that earned the guano crazy designation, here.  But I would have to say that AFCCA’s docket administration is just about there.  Here is another petition, and the related docketing notice (here), to CAAF seeking expedited review due to a case languishing in appellate review–and this petitioner is in confinement!

Now if the Navy Judge Advocate General was crazy enough to appoint me to the Court of Criminal Appeals (and that’s guano crazy), I would think as a judge I would prioritize appellate review of those cases where the appellant was still sitting in confinement.  Now that’s me. Yet the appellant/petitioner in Carter v. Air Force Court of Criminal Appeals, Misc. Dkt. No. 13-8006/AF, submitted his brief in August 2011 and still doesn’t have a decision from the Air Force Court.  The petition also notes that AFCCA now has 83 cases that exceed the 18-month Moreno-standard.  Is that not guano crazy after Moreno?

17 Responses to “AFCCA Going for Guano Crazy Designation”

  1. Dew_Process says:

    Someone should be reading up on Art. 98(1), UCMJ, and acting accordingly.

  2. Michael Lowrey says:

    Worth noting is that AFCCA only had five active-duty judges for about the past last year — this has recently increased though to eight judges.
    By comparison, 11 ACCA judges participated in that court’s Schell en banc decision.

  3. Mike "No Man" Navarre says:

    ML–Isn’t maintaining adequate staffing in the three parts of the MilJus appartus (defense, gov’t and court) lesson learned #1 from Diaz?  I think they called it “institutional vigilance?”

  4. Babu says:

    There are plenty of deployed judge advocates who are working non-stop, 7 days a week, because that is what the mission requires.  Unless AFCCA judges are already working those hours, there is no excuse for failing to accomplish the mission, regardless of staffing levels.  Being stationed CONUS is not an entitlement to a regular work week.   

  5. RY says:

    Five judges is probably too few but these delays go well beyond a year.  More importantly, each of the appellate shops have deployed several JAGs, making their manning fairly comparable yet they continue to pump out briefs far faster than AFCCA.  I mean, seriously, if JAJA can push a brief a few months, JAJG respond in a month or two, why on earth does it take AFCCA more than a year regularly?  Their process is broken.

  6. RY says:

    ML – BTW, ACCA and NMCCA see about 2x the cases that come through AFCCA.  They have more judges but comparatively, are more productive.

  7. Dew_Process says:

    ML – add the two Reserve Judges and AF CCA has 10 Judges.

    In the end, it is a failure of senior AF JAG leadership — they know who is scheduled to retire and when; they know that among AF JAG colonels, it is a “dead end” slot, so folks fight from getting assigned there; and as long as CAAF doesn’t start reversing their cases, they don’t really care.

    But, pity the poor SJA who has a couple of his/her military justice folks deployed and their “processing times” go to hell — a fact of consequence only prior to being sentenced, then who cares.

    Kudoes to Col Sullivan and his civilian office for not only taking on this issue, but bringing it to the light of day.

  8. Dwight Sullivan says:

    Dew Process,

    To quote Shaggy, it wasn’t me.  Bill Cassara and Capt Chris James are the counsel in the Merritt case (hence the No Man’s clever “Bill James” reference to Merritt’s counsel).  And Capt Luke Wilson was Carter’s counsel in both his previous petition for extraordinary relief and the one that was filed yesterday.

  9. Charlie Gittins says:

    Too bad there is no mechanism to put the AFCCA judges in confinement for a few days to “just get a taste.”  I suspect that they’d be turning and burning 24/7 if they faced a little punishment for their unacceptably dilatory conduct. This really is unconscionable, unprofessional and bush league.  Only 5 judges?   So, prioritize the cases, just like a corporal prioritizes completion of his work. Sounds like the Judge Advocate General was derelict in the performance of his duties to see that his court was properly staffed.  Yeah, I know, good luck with that . . . .  And people wonder why I quit this work.  


  10. TB says:

    This might be a good time to revisit the time and money invested in the “Project Outreach” TDYs the court routinely conducts.  Fine concept – but times are tough.

  11. Ex TC says:

    NMCCA crawled out of its backlog hole several years back by pumping up to 15 judges, mostly reservists. And since civilians can sit as app judges (awesome 1970’s court photos use to be in the NMCCA chambers, complete with 1970’s stylish suits and haircuts) seems time to cut back on the golf courses AF and pump a little into miljus.

  12. anon says:

    I am in complete agreement that a CCA should be able to issue an opinion within a year of pleadings being submitted. However — before we all start getting up in arms about the 18 month Moreno timeline — factually in both cases much of the time between docketing and the present is attributable to the defense (in Merritt it appears around one year from docketing to the submission of the defense’s initial pleadings).  The old adage “Cutting off the nose to spite the face” may be applicable here because that automatic CCA defense extension may cease to exist.

  13. Mike "No Man" Navarre says:

    anon–I am assuming that since the civilian at AF Appellate Defense Deputy was around and working at Navy-Marine Corps appellate defense when NMCCA had just that reaction to Diaz, Moreno et al., that they have considered that outcome and are willing to deal with it.

  14. anon says:

    To play devil’s advocate, doesn’t the defense delay militate against the CAAF issuing a writ of mandamus? For example, in Carter it appears that the defense took a year to submit pleadings (August 2010 docketing to August 2011), and then filed a motion for expedited review three months later. 

    Further, what, if any, relevance should the CAAF place on evidence showing systemic problems at the AFCCA? Can CAAF’s use its writ powers used to address “endemic” delay at the CCA or must they be used to address specific delay for an individual appellant?

  15. Phil Cave says:

    Anon (September 21, 2012 at 9:46 am).

    That’s not how appellate representation works, in the same way that’s not how trial litigation works.  You represent one client at a time, and you have no obligation to other clients.
    DHMLS will confirm that there were occasional discussions at Navy about one client’s issue being raised and a collateral effect of that client’s success being to screw everyone client in the Division.

    For an appellate counsel to fail to raise a meritorious issue  because of a potential adverse effect on that counsel’s docket, the docket of other counsel, or other appellant’s is ineffective assistance of counsel beyond all doubt.

    True, it’s nice if one client’s case can get relief for others – what was hoped a la Fosler/Humphries.

  16. Dwight Sullivan says:

    Anon, the extent of the appellate delay would seem to be relevant to CAAF deciding whether it wants to address the issue through the means of extraordinary relief.  If there’s a problem in one or two cases, CAAF would probably be less likely to look at the issue than if there a problem in, say, 83 cases.  Just like the Supreme Court is more likely to exercise its certiorari jurisdiction to address a legal issue that arises frequently, CAAF would probably be more likely to choose to exercise its extraordinary relief jurisdiction to address a widespread problem.  So it makes sense that counsel seeking extraordinary relief would attempt to demonstrate a systemic deficiency.

  17. anon says:

    FYI, an interesting corollary issue regarding systemic versus individual delay developed in the 9th Circuit regarding treatment and adjudication issues before the Department of Veteran Affairs.  Veterans for Common Sense v. Shinseki, 678 F.3d 1013 (9th Cir. 2012) (en banc).  A writ of certiorari was just filed before the Supreme Court.  It may be purely academic, but I’m skeptical that a court can use evidence of systemic delay to address prejudice towards an individual appellant in the context of an extraordinary writ.