CAAF decided United States v. Wilson, No. 13-0096/AR, 72 M.J. 347 (CAAFlog case page) (link to slip op.), on July 11, 2013, finding that Appellant’s right to a speedy trial under Article 10 was not violated and affirming the decision of the Army Court of Criminal Appeals.

Judge Erdmann writes for the court, joined by Judges Ryan and Stucky. Chief Judge Baker dissents, joined by Senior Judge Cox who also writes a separate dissenting opinion.

Appellant was convicted by a general court-martial composed of a military judge alone, pursuant to mixed pleas, of various drug offenses and an orders violation, and sentenced to reduction to E-1, confinement for 40 months, and a bad-conduct discharge. Pursuant to a pretrial agreement, the convening authority approved only 21 of the 40 months of confinement, and he credited Appellant with 174 days of pretrial confinement. Those 174 days are the heart of the matter before CAAF, which granted review to determine: “Whether Appellant was denied his right to a speedy trial in violation of Article 10, UCMJ, when the Government failed to act with reasonable diligence in bringing him to trial.”

After the court granted review, we remarked that the case presented a Monty Python-esque protest by Article 10 that it’s “not dead yet.” Many trial practitioners know better, as the putrefying corpse of Article 10 is a great topic for brief-writing, but invariably a loser for the defense.

And so it continues in Wilson, as a sharply divided court finds that despite “several periods of unexplained or unjustified delay,” (slip op. at 19) Appellant’s “Article 10 right to a speedy trial was not violated” (Slip op. at 20). Just Erdmann begins his opinion by noting that Appellant raised only an Article 10 claim at CAAF, and he limits his analysis to this statutory guarantee (and does not discuss the regulatory guarantee of R.C.M. 707 or the constitutional guarantee of the 6th Amendment). Slip op. at 4. The issue was extensively litigated at the trial stage, where Appellant was denied relief, and CAAF enjoys a well-developed record to review (a point Judge Erdmann notes in footnote 14).

Early in the opinion, Judge Erdmann re-states the settled principle that Article 10 “imposes on the Government a more stringent speedy-trial standard than that of the Sixth Amendment.” Slip op. at 8 (marks and citation omitted). A long footnote reveals that this “more stringent” standard is found only in the invocation of the legal analysis, and not in its actual application:

While the federal circuits seem to require a delay approaching a year to review Sixth Amendment speedy trial claims, a much shorter delay will trigger the full Barker analysis in an Article 10 case. Indeed, in Wilson’s case, even the Government concedes that the pretrial delay of 174 days “would likely constitute a facially unreasonable delay.” Thus, while Chief Judge Baker’s dissent suggests that this court has viewed the “more stringent” Article 10 standard as essentially the same as the Sixth Amendment standard, this very case is evidence of the application of a more stringent standard for speedy trials in the military.

Slip op. at 9 N.2 (citations omitted). In other words, the fire to which the Government’s feet will be held is rhetorical. And Judge Erdmann’s application of the four factors identified by the Supreme Court in Barker v. Wingo, 407 U.S. 514, 530 (1972), to the facts of this case seems to be just that, as he repeatedly shifts the burden to Appellant.

First, Judge Erdmann concludes that the 174 days of pretrial confinement is, under the circumstances of this case, “sufficient to trigger the full Barker analysis.” Slip op. at 11. But “[i]n its brief the Government concedes that the 174-day delay ‘would likely constitute a facially unreasonable delay.'” Slip op. at 11. So, no surprise here.

Second, Judge Erdmann adopts the trial judge’s allocation of responsibility for the 174 days, with 16 days attributed to the judge, 43 days attributed to the Defense, and 115 attributed to the Government. Slip op. at 12. The trial judge also noted three specific time periods that he found to be “improper and to reflect a lack of proper diligence in a case involving a confined accused” (slip op. at 13), “not justified” (Id.), and “unusual and unjustified” (Id.). Judge Erdmann and the majority:

share the military judge’s concern that there appear to be “several periods during which the Government seems to have been in a waiting posture.” The Government is tasked with handling cases with “reasonable diligence,” and the inattention to timeliness in Wilson’s case is troubling. However, the stipulated timeline, adopted by the military judge as a finding of fact, provides a factual explanation for much of the delay attributable to the Government. The timeline provides context and explanations which reflect reasonable pretrial decisions and activities including potential immunity for other actors, the unit’s pending deployment to Afghanistan, drug testing by USACIL, and “complicated” pretrial negotiations.

Slip op. at 14 (citation omitted). While Judge Erdmann and the majority are satisfied with the “context and explanations” (not to be confused with “excuses”) offered by the Government to explain its “improper,” “unusual,” and “unjustified” delays, it’s hard to forget the incredulity of Judge Stucky who, during the oral argument of this case, asked if the entire unit had “decamped” in preparation for its deployment, leaving not a man behind to oversee the prosecution of the confined Appellant as the months passed. And yet, Judge Stucky now joins the majority that excuses the “improper,” “unusual,” and “unjustified” delays, with Judge Ermann writing that “the delays identified by the military judge weigh against the Government, however, that weight is minimized when balanced against the Government’s explanations as to the overall time period.” Slip op. at 15.

Third, while Appellant did demand a speedy trial, and even litigated the question of denial of that right at the trial stage, Judge Erdmann and the majority actually fault Appellant for not complaining even earlier, noting that the speedy trial demand did not come until Appellant had been in pretrial confinement for 119 days. The majority “agree[s] with the military judge that the timing of Wilson’s demand for a speedy trial affords it only slight weight in his favor.” Slip op. at 15. This agreement is contextualized by a comment that “the demand for speedy trial did not occur until fourteen days after Wilson’s offer to plead guilty was denied.” Slip op. at 15. But this context only adds insult to injury, as the delay incurred during consideration of Appellant’s offer to plead was itself deemed “unusual and unjustified”:

The final period of delay identified by the military judge was November 10 to 30, 2010. This period commenced with the submission of Wilson’s Offer to Plead Guilty and terminated with the convening authority’s rejection of the offer. While the military judge noted that the unit’s chain of command was deployed during that period, the length of delay was “unusual and unjustified.”

Slip op. at 13. Appellant appears to blame for the Government’s delay.

Moreover, Judge Erdmann gives no consideration to the fact that the Supreme Court’s decision in Willie Mae Barker’s case turned on:

the fact that Barker did not want a speedy trial. . . . Instead the record strongly suggests that while he hoped to take advantage of the delay in which he had acquiesced, and thereby obtain a dismissal of the charges, he definitely did not want to be tried. . . . The probable reason for Barker’s attitude was that he was gambling on [the co-accused] Manning’s acquittal. The evidence was not very strong against Manning, as the reversals and hung juries suggest, and Barker undoubtedly thought that if Manning were acquitted, he would never be tried.
Barker, 407 U.S. at 534-535 (emphasis added). Instead, CAAF turns this factor on its head, finding that Appellant, who demanded a speedy trial in the earliest stages of his case, still did not make that demand early enough to give it significant weight in his favor.

Finally, the majority finds no prejudice that would warrant relief. Noting that the interests the “speedy trial right was designed to protect” are “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired,” Judge Erdmann explains that the most significant interest is the last, but Appellant’s arguments focused on the first two. Slip op. at 15-16. The assertion of oppressive pretrial incarceration in this case included the circumstances of Appellant’s pretrial confinement, as he was held in a civilian facility where he was the only African-American in a unit of approximately 20 prisoners, many of whom were racially hostile towards him. Analyzing these conditions, the majority again puts the burden on Appellant, faulting him for failing to separately litigate the conditions of his pretrial confinement:

While we do not condone any type of racially insensitive behavior, it is instructive to our analysis as to the severity of the complained of conduct that Wilson did not file an Article 13 motion concerning his treatment and the record does not reflect that he complained to his chain of command. Failure to raise an Article 13 claim, though not dispositive of an Article 10 claim, may be considered as a relevant factor bearing upon the question of prejudice for oppressive confinement. Nor did Wilson seek any pretrial confinement remedies for violations of R.C.M. 305, either pretrial or in his clemency request to the convening authority. Accordingly we conclude that Wilson’s conditions of confinement did not constitute “oppressive pretrial confinement” in an Article 10 context.

Slip op. at 17-18 (citation omitted). The majority also rejects Appellant’s argument that he suffered anxiety from the delay, distinguishing between “the normal anxiety and concern experienced by an individual in pretrial confinement,” and “some degree of particularized anxiety and concern greater than the normal anxiety and concern associated with pretrial confinement.” Slip op. at 18.

Balancing all four factors, the majority finds that Appellant’s Article 10 right to a speedy trial was not violated, because even though there were “several periods of unexplained or unjustified delay,” they “appear to be the result of inattention and neglect and although they weigh against the Government, they do not weigh as heavily against the Government as they would if there was a deliberate effort to delay the case.” Slip op. at 19. And “while Wilson filed a demand for a speedy trial, he waited until he had been confined for 119 days to do so.” Slip op. at 19-20. “Finally, Wilson failed to establish that the conditions of his confinement or any anxiety or concern that he suffered rose to the level of Article 10 prejudice.” Slip op. at 20.

But Chief Judge Baker and Senior Judge Cox vigorously dissent. The Chief Judge’s dissent, joined by the Senior Judge, sets an emperor-has-no-clothes tone, as he highlights that:

the Court has never explained how “a more stringent speedy-trial standard” differs from the Sixth Amendment’s speedy trial standard under Barker. To the contrary, the Court appears to have applied the Barker factors without deviation or distinction from Sixth Amendment precedent.

Diss. op. at 2. He also wonders how the trial judge could find “that the Government did not move with reasonable diligence during several notable instances” but still “conclude that the Government’s actions, as a whole, ‘reflect[ed] reasonable diligence.'” Diss. op. at 2-3. And he questions the allocation of responsibility among the parties, as “[i]f reasonable diligence is the standard based on some overall assessment of progress, it should not matter just how many days are attributable to each party.” Diss. op. at 3.

The Chief Judge also tackles the issue of Appellant’s pretrial confinement in a racially-hostile civilian facility, which he finds “do not constitute normal incidents of military pretrial confinement.” Diss. op. at 5 (emphasis in original). He also attacks the majority as unreasonable for assuming that Appellant would think to litigate R.C.M. 305 and Article 13 claims to address the circumstances of his confinement, as opposed to just complaining to his jailers (as he did). Rather, the dissenters agree that “[t]he absence of Article 13, UCMJ, and R.C.M. 305 claims has less to do with whether Wilson’s confinement was ‘oppressive’ than the quality of his lawyer’s decision making.” Diss. op. at 7.

The Chief Judge concludes by noting that speedy trial violations are rarely granted, but he believes that this case violated the guarantee afforded by Article 10 (though not the guarantee of the 6th Amendment).

In a separate dissent, Senior Judge Cox details a minority view that has now been thoroughly rejected by the court:

I would attribute no delay to the defense unless the defense requests the delay or engages in some sharp practice that causes a delay with the view of triggering the speedy trial rule. I would attribute no delay to the absence of a military judge unless it is occasioned by military exigencies or circumstances which are predetermined and made a matter of record at the time they take place and notice is given to the accused so that he can be heard on the question of delay at that time. . . .

Appellate courts should not be on a search and rescue mission to save the government from delay . . . It is ridiculous for military judges to have to look backwards and try to save the government from its lack of attention to the “immediate steps” Congress mandated that it take to get a military accused either to trial or out of confinement.

Diss. op. at 4.

CAAF has done exactly what Senior Judge Cox decries, finding reasons to save a case from Government delays that the court acknowledges are “improper,” “unusual,” and “unjustified,” setting the standard for subordinate military courts to follow, and blotting the ink from Article 10’s obituary.

Case Links:
• ACCA opinion (summary disposition)
Blog post: Article 10: Not dead yet?
Appellant’s brief
Appellee’s (Government) brief
CAAF argument audio
CAAF opinion
Blog post: Article 10: Dead.
Blog post: Opinion analysis

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