Here’s a story of two CCA cases addressing post-trial delay, one from the Army and the other from the Air Force.

In December, the Army CCA denied relief for post-trial delay in United States v. Martinez, No 20110570 (A.Ct.Crim.App. Dec. 17, 2013) (link to slip op.). The case was a guilty plea to wrongful possession of child pornography. But the December opinion was the CCA’s third review of the case, due to a repeatedly incomplete and improperly authenticated record of trial and “ambiguous and potentially misleading” staff judge advocate recommendations. Slip op. at 2-3. Finally, “the government, on its third attempt, compiled a complete, verbatim, and properly authenticated record of trial.” Slip op. at 4. The CCA acknowledged that this was “not a model of post-trial processing.” Slip op. at 4.

The final record included “[t]he staff judge advocate’s recommendation to grant clemency for the delayed post-trial processing of appellant’s case and the convening authority’s grant of clemency, reducing appellant’s period of confinement from the pretrial agreement period of 12 months to 329 days.” Slip op. at 3. A one-month reduction of a twelve-month sentence isn’t a bad remedy. Unfortunately, this action “resulted in neither early release nor the return of forfeited monies,” because the appellant was confined past the end of his enlistment and the clemency occurred more than a year after he finished serving the full twelve-month sentence. Slip op. at 5. So the convening authority agrees that clemency is warranted, but grants no actual clemency.

And despite the fact that the sentence was adjudged on July 9, 2011 (slip op. at 4), and the CCA wasn’t able to complete its review until over 29 months later, the court concluded that:

The post-trial processing of appellant’s case does not warrant the extraordinary measure of reducing appellant’s approved confinement to a date ending on or before his ETS date simply to reimburse appellant monies previously forfeited nor does it warrant disapproval of his punitive discharge. Recognizing that appellant received neither forfeited monies returned nor early release by the convening authority’s sentence reduction, our decision to deny relief is unchanged.

Slip op. at 5. So much for doing something about those  But it could be worse. Over at the Air Force CCA it seems that some offenders actually deserve indifference from the Government.

The trial proceedings in United States v. Riley, No. S32097 (A.F.Ct.Crim.App. Nov 19, 2013) (link to slip op.) were straightforward. “The appellant’s court-martial began at 0858 hours and adjourned at 1646 hours on 4 May 2012. The appellant ple[aded] guilty pursuant to a pretrial agreement in which the convening authority agreed to refer the case to a special court-martial.” Slip op. at 3. But it took 147 days for the convening authority to take action in the case, in violation of the 120-day standard of United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006).

The AFCCA considered the circumstances of the delay, including the fact that “similar issues have been raised in other cases tried at the same base close in time to this case.” Slip op. at 5 N.1. But the court concluded that “the post-trial delay was harmless.” Slip op. at 5. It then considered granting relief anyway, pursuant to its authority under Article 66(c) and United States v. Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002) (last discussed here). This one-sentence paragraph in that consideration caught my attention:

In the absence of evidence of legitimate reasons to explain the lengthy delay, we find that the Government acted indifferently in meeting well-established and clearly defined time standards.

Slip op. at 6. A finding “that the Government acted indifferently” is a bad thing. Relief is sure to follow, right? Well, there’s another side to the story. The appellant is undeserving:

In counter-balance to the Government’s indifferent processing of this case, the appellant was convicted of serious offenses. He stole over $14,000 worth of military equipment and engaged in the repeated use of an intoxicating substance to the point that it caused chemically induced psychosis. His willful use of this substance resulted in his hospitalization.

Slip op. at 6. The AFCCA granted no relief.

2 Responses to “Sometimes an appellant deserves relief but doesn’t get it. Other times the Government acts indifferently, but an appellant still doesn’t get relief.”

  1. Dude says:

    So, basically, Riley means that it is important for the government to afford criminal defendants their post-trial rights unless those criminal defendants happen to be, well, criminal defendants. It’s always nice to see such sound legal reasoning.
     

  2. Phil Cave says:

    On Riley I am indifferent to the reasoning, but the AFCCA got it right – in this case.  He got five months which means he was out of the brig within 125 days at worst.  No way was the case getting to AFCCA and briefed, even if he had meritorious issues.  So, Microsoft needs to add an additional proof-reading module along with spell check and grammar check – unwise language check. 
    The real issue is prejudice.  There isn’t any.  There is no meritorious issue that could of received relief either through a set-aside or  – ahem – sentence relief, no matter how illusory sentence relief may seem.  And I did not see it in the opinion so I assume a post-trial motion wasn’t done.
    What I have done in a number of cases is at day 90 file a post-trial motion for release from confinement and Moreno credit.  In several cases I have gotten credit (not release), and in many others the ROT within 30 days.  This may be an area where the defense counsel could be filing motions and then putting it in the 1105, all at a time when there might be more encouragement to give some relief.  If nothing else I think that’s a better practice to preserve the issue and work for the client.  A delayed ROT means a delay in getting clemency to the CA.