In this post we covered the petition for extraordinary relief in Merritt v. Air Force Court of Criminal Appeals, No. 13-8002/AF, in which the petitioner seeks a writ of mandamus to address  excessive appellate delay at the AFCCA. We also picked up  a McClatchy article about the delay in this post.

Recently, the AFCCA discussed this delay in a number of unpublished opinions. But that discussion appears to be awfully formulaic. I found the following language, reproduced nearly (if not actually) verbatim, in a number of recent opinions:

We note that the overall delay of over [## days/months] between the time this case was docketed at the Air Force Court of Criminal Appeals and completion of review by this Court is facially unreasonable. Because the delay is facially unreasonable, we examine the four factors set forth in Barker v. Wingo, 407 U.S. 514, 530 (1972): (1) the length of the delay, (2) the reasons for the delay, (3) the appellant’s assertion of the right to timely review and appeal, and (4) prejudice. See United States v. Moreno, 63 M.J. 129, 135-36 (C.A.A.F. 2006). When we assume error, but are able to directly conclude that any error was harmless beyond a reasonable doubt, we do not need to engage in a separate analysis of each factor. See United States v. Allison, 63 M.J. 365, 370 (C.A.A.F. 2006). This approach is appropriate in the appellant’s case. The post-trial record contains no evidence that the delay has had any negative impact on the appellant. Having considered the totality of the circumstances and the entire record, we conclude that any denial of the appellant’s right to speedy post-trial review and appeal was harmless beyond a reasonable doubt.

See, for example, United States v. Arbelle, No. 37703, Slip op. at 4 (A.F.Ct.Crim.App. August 28, 2012); United States v. Bell, No. S31885, Slip op. at 2-3 (A.F.Ct.Crim.App. August 30, 2012); United States v. Lekse, No. 37733, Slip op. at 4-5 (A.F.Ct.Crim.App. September 5, 2012); United States v. Cooper, No. 37758, Slip op. at 2 (A.F.Ct.Crim.App. September 28, 2012); United States v. Heathington, No. S31912, Slip op. at 3 (A.F.Ct.Crim.App. October 10, 2012); United States v. McClannahan, No. 37770, Slip op. at 4 (A.F.Ct.Crim.App. October 10, 2012); United States v. Frame, No. S31878, Slip op. at 4 (A.F.Ct.Crim.App. October 10, 2012); United States v. Santana, No. 37742, Slip op. at 7 (A.F.Ct.Crim.App. October 18, 2012); United States v. Harkcom, No. S31904, Slip op. at 2, N.1 (A.F.Ct.Crim.App. October 18, 2012); United States v. Barksdale, No. 37900, Slip op. at 3 (A.F.Ct.Crim.App. October 25, 2012); United States v. Smith, No. 37863, Slip op. at 10, N.5 (A.F.Ct.Crim.App. November 8, 2012).

4 Responses to “Is judicial imitation still the highest form of flattery?”

  1. ConLaw says:

    Yes – are you daring to suggest that these aren’t real courts?  Gasp.

  2. Bill C says:

    Well, at least it is better than when the Navy Court was caught “cutting and pasting” government briefs into their opinions. 

  3. Christopher Mathews says:

    Would it advance the practice of military law to have the judges come up with new verbiage every time they address the issue, even if they reach the same result as before? 

  4. Zachary Spilman says:

    even if they reach the same result as before

    Awfully convenient.

    Where’s my aluminum foil…