Article 10 was our #10 military justice story of 2013. “CAAF blotted the ink from Article 10’s obituary [in 2013],” I wrote, and “the possibility that Article 10 will rise from the dead [in 2014] is slim.”

But in the final days of 2014 the Coast Guard CCA issued an opinion in United States v. Cooley, No. 1389 (C. G. Ct. Crim. App. Dec. 24, 2014) (link to slip op.) dismissing numerous charges for violation of the appellant’s right to a speedy trial under Article 10. Chief Judge McClelland wrote for a three-judge panel of the court.

Pursuant to a pretrial agreement the appellant conditionally pleaded guilty, at a general court-martial composed of a military judge alone, of one specification of attempting a lewd act with a child of more than 12 years but less than 16 years, two specifications of attempting to wrongfully commit indecent conduct, one specification of failing to obey an order, and one specification of wrongfully and knowingly possessing apparent child pornography, in violation of Articles 80, 92, and 134. He was sentenced to confinement for seven years, total forfeitures, reduction to E-1, and a bad-conduct discharge. In accordance with the pretrial agreement the convening authority suspended all confinement in excess of 50 months.

In July 2012 the appellant confessed to soliciting sexually explicit photographs from minor children. He was then subjected to a series of pretrial restraints, until he was eventually ordered into pretrial confinement (for the second time) on December 20, 2012, where he remained until his guilty plea on October 4, 2013. Many things happened in those 289 days: charges were dismissed without prejudice for violation of the regulatory speedy trial RCM 707, new charges were added, and two Article 32 pretrial investigations were conducted.

This creates a complicated case history from which I draw the following important dates:

  • December 20, 2012: The appellant was placed into pretrial confinement;
  • February 29, 2013: Charges preferred;
  • May 23, 2013: Charges dismissed without prejudice, for violation of the 120-day time limit of RCM 707;
  • May 23, 2013: Original charges re-preferred;
  • Unknown date: Charges dismissed;
  • June 14, 2013: Original charges preferred for third time, along with two new specifications;
  • September 10, 2013: The appellant was arraigned, military judge denied motion to dismiss on speedy trial grounds;
  • October 4, 2013: The appellant entered conditional pleas of guilty.

The CCA’s decision dismisses the original charges with prejudice (for violation of Article 10), and the two additional specifications without prejudice (for violation of RCM 707). And so it seems that Article 10 has risen from the dead! But I’m not so sure…

Article 10 issues are evaluated using the four-factor framework from Barker v. Wingo, 407 U.S. 514, 530 (1972): “(1) the length of the delay; (2) the reasons for the delay; (3) whether the appellant made a demand for a speedy trial; and (4) prejudice to the appellant.” United States v. Wilson, 72 M.J. 347, 351 (C.A.A.F. 2013) (CAAFlog case page) (citations omitted).

The Coast Guard CCA’s analysis in Cooley begins with the second factor:

It is clear that a significant part of the delay between the dismissal without prejudice at the first trial and commencement of the second trial is attributable to the fact that additional specifications were preferred and referred to trial. The question of whether it was permissible to delay Appellant’s trial in order to add new specifications while he remained in pretrial confinement places a spotlight on the second Barker factor, the reason for the delay.

Slip op. at 5-6. Denying the appellant’s final motion to dismiss, the military judge noted that the pretrial delay was due to the Government’s attempts to join all known offenses for a single trial. But the CCA rejects this as a legitimate basis for the delay:

We do not see judicial economy, or any other reason, as justifying a significant pause to prefer additional specifications and fulfill Article 32 requirements with respect to those additional specifications. We do not consider the pause excusable merely because it resulted from a good-faith attempt to join all known offenses at one hearing.

Slip op. at 6 (emphasis added). The CCA concludes that delaying the trial for as long as the Government did for the purpose of judicial economy “weighs significantly against the Government.” Slip op. at 7.

The CCA then considers the first Barker factor – the length of the delay – and finds that it also weighs significantly against the Government:

We conclude that Appellant waited for trial after dismissal at the first trial for at least two months longer, and perhaps as much as three months longer, than would have been the case if there had been no pause to add specifications. We consider this additional delay significant; it weighs significantly against the Government.

Slip op. at 8.

The third Barker factor also weighs against the Government because the appellant made numerous speedy trial demands throughout the processing of the case.

I think the CCA’s analysis of the first three factors is rather unremarkable (though the underlying facts are astonishing). But the court’s analysis of the fourth factor is worthy of special consideration. The CCA finds:

The final Barker factor is prejudice. To start, Appellant was confined; each day of confinement before trial is clear prejudice. The military judge makes several references to the fact that Appellant was placed in pretrial confinement based on his own misconduct. Most notably, she states, “The accused is in pretrial confinement based on his own misconduct when lesser forms of restraint proved inadequate. Consequently there is not prejudice to the accused.” (26 September Ruling at 8.) This is tantamount to a ruling that confinement imposed because a new offense was committed after notification to an accused of investigation of earlier offenses is not prejudice, or, more simply, confinement that is highly justified is not prejudice. We reject this notion. Pretrial confinement is prejudice no matter how solidly based.

Appellant asserts other specific items of prejudice, some of which occurred well before the dismissal at the first trial. We see no need to address these specific items of alleged prejudice; the prejudice of confinement itself weighs significantly against the Government.

Slip op. at 9 (emphases added). Reading this made me feel pretty good, until I realized that Chief Judge McClelland didn’t cite any authority to support the proposition that the pretrial confinement is prejudice in itself.

This is a problem for the undead Article 10.

In Barker the Supreme Court noted:

Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (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.

United States v. Mizgala, 61 M.J. 122, 129 (C.A.A.F. 2005) (quoting Barker, 407 U.S. at 532) (emphasis added). And preventing “oppressive” pretrial confinement, rather than preventing plain ordinary pretrial confinement, has been a recurring theme in Article 10 jurisprudence. For example:

[T]here was no “oppressive pretrial incarceration” here.

United States v. Grom, 21 M.J. 53, 57 (CMA 1985).

[A]ppellant’s pretrial confinement, although prejudicial, was clearly proper under the circumstances. Such prejudice to appellant is mitigated in part by his receipt of administrative credit for pretrial confinement.

United States v. McCallister, 24 M.J. 881, 891-892 (A. Ct. Mil. Rev. 1987), aff’d, 27 M.J. 138 (C.M.A. 1988).

Mizgala experienced 117 days of pretrial confinement, which necessarily involves some anxiety and stress, but there is no evidence in the record that the conditions of that confinement were harsh or oppressive.

United States v. Mizgala, 61 M.J. 122, 129 (C.A.A.F. 2005).

Although there was pretrial confinement in this case, there has been no evidence that AB Cossio’s “anxiety and concern” has exceeded the norm. . . . Therefore, there is no prejudice in this case beyond that inherent in sitting in pretrial confinement.

United States v. Cossio, 64 M.J. 254, 257-258 (C.A.A.F. 2007) (quoting the military judge’s ruling).

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 . . . . 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.

United States v. Wilson, 72 M.J. 347, 354 (C.A.A.F. 2013) (CAAFlog case page).

Appellant served two months of confinement beyond his adjudged sentence. But in four decisions, no military judge or court of appeals has found significant prejudice in Appellant’s case. We also decline to do so.

United States v. Danylo, 73 M.J. 183, 192 (C.A.A.F. 2014) (CAAFlog case page).

This does not bode well for a resurrection of Article 10.

To be fair to Chief Judge McClelland, the prejudice factor of the Barker framework is not the linchpin of the CCA’s decision in this case. Rather, the CCA explicitly acknowledges that “the question is whether the Government displayed reasonable diligence in proceeding toward trial,” and the court “look[s] at the proceeding as a whole.” Slip op. at 9. Doing so, the CCA concludes that “despite what might be regarded as reasonable diligence up to the point of dismissal at the first trial, the Government’s decision to pause so as to add new specifications to the case – resulting in at least two extra months before trial commenced – does not, in our view, constitute reasonable diligence. This was not merely a short period of inactivity, it was an intentional diversion to new activity that was in no way required for the case to go forward, displaying a disregard for the speedy trial rights of the confined Appellant.” Slip op. at 9.

To this I say, bravo! But if CAAF stays true to its Article 10 jurisprudence up to this point, it’s going to look for something more than mere confinement to justify a finding of prejudice (and I see certification as guaranteed, considering that the convening authority agreed to conditional pleas).

4 Responses to “The Coast Guard CCA raises Article 10 from the dead”

  1. Peter E. Brownback III says:

      One of the problems with military justice is the great divide between trial and appellate points of view.  Speaking as a (former) trial judge and one who is almost completely ignorant of the appellate world, confinement is prejudicial.  One doesn’t need an appellate court to make that determination.
      Lane was an outstanding trial judge (She taught Keith Hodges and I tricks of the trade that just amazed us.).  She knew what was happening where the rubber met the road (?? – the cutter met the waves). She had been in confinement facilities, she saw the people in there and the conditions under which they were held, and could recognize for herself that confinement is prejudicial. Sometimes 2 + 2 does equal 4.

  2. k fischer says:

    Great analysis, Z.

  3. Grey says:

    I do like how the CCA here addressed the prejudice of pretrial confinement.  Pretrial confinement is always prejudicial to some degree.  Maybe not unduly prejudicial and maybe not reversible error, but there is always some prejudice to the accused’s rights.  There is a night and day difference when I look back at my cases where my client was free and able to assist in his own defense, versus the cases where I had to play telephone tag all day with the brig just to ask a single question to my client—this wasn’t just a nuisance, but actually altered the evidence that could be presented at trial.  Every other fundamental right is significantly curtailed by confinement, so of course there is some level of prejudice to the accused’s rights.  The trial court here simply said “there is not prejudice to the accused.”  Perhaps there was not extraordinary prejudice in this appellant’s confinement, but the trial judge oversimplified things by saying there was none.
    The appellate opinions cited by Z seem to commit the same mistake of viewing the lack of extraordinary prejudice as the absence of any prejudice.  They are looking for particularly oppressive confinement and ignoring the prejudice that is “inherent in sitting in pretrial confinement” as Cossio calls it (before ignoring it).  That fact that the prejudice to an appellant is only ordinary is actually seen as weighing in favor against relief.  Speedy trial rights are intended to ameliorate the harm inherent in pretrial confinement, not just pretrial confinement that is particularly aggravating.  You don’t need speedy trial rights to protect against harsh confinement conditions; there are other rights to protect against that (i.e. the right to be free from pretrial punishment and the right to be free from cruel and unusual punishment). 
    Going back to United States v. Powell, 383 U.S. at 120 (1966), the Supreme Court stated that the 6th Amendment speedy trial provision was a safeguard to protect from “undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation, and to limit the possibilities that long delay will impair the ability of an accused to defend himself.”  Note that Court only used the word “possibilities” when discussing the third harm (delay that impairs the ability to defend).  The first two harms are not presented as possibilities; they are presumed.  All are to be minimized. 
    I would argue that in the speedy trial context that courts should no longer test for all three components of ‘prejudice’ in the fourth factor of the Barker test.  The oppression of incarceration and anxiety accompanying public accusation can be safely assumed, the courts should focus on possible detriment to the defendant’s ability to present his case associated with the delay.    
    @Peter Brownback – you say “Sometime 2+2 does equal 4,” was that your spam protection question?

  4. Zachary D Spilman says:

    Your point is well taken, Grey.

    I’ll note that:

    A fundamental component of due process is the presumption of innocence accorded the criminal defendant. Pretrial release has long been recognized as a vital concomitant of that presumption. If a person may arbitrarily be confined before his trial, then in truth punishment precedes conviction and the presumption of innocence avails defendant little.

    Courtney v. Williams, 1 M.J. 267, 271 (C.M.A. 1976) (citations and marks omitted). 


    Although Article 10, UCMJ, is generally directed toward the advent of a speedy trial, it is specifically addressed to a particular harm, namely causing an accused to languish in confinement or arrest without knowing the charges against him and without bail. See United States v. Mizgala, 61 M.J. 122, 124 (C.A.A.F.2005).

    United States v. Schuber, 70 M.J. 181, 187 (C.A.A.F. 2011).

    Of course, there is no bail in the military pretrial confinement system (and watch for a post related to this issue tomorrow morning).

    I don’t think the Coast Guard court necessarily got it wrong in this case (and I’d love to see a rebirth of Article 10), but I do think CAAF will look for a greater articulation of prejudice than the mere fact of pretrial confinement, as prejudicial as pretrial confinement is on its own.