CAAF’s daily journal shows the following entry from Tuesday, June 9:
No. 15-0387/CG. U.S. v. Christopher S. Cooley. CCA 1389. On consideration of Appellant’s motion for an expedited review, it is ordered that said motion is hereby denied.*
* BAKER, Chief Judge (dissenting):
Given the nature of the issue presented, I would grant oral argument immediately.
Cooley is a case involving application of the speedy trial rule in Article 10, UCMJ. 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), dismissing numerous charges for violation of Cooley’s right to a speedy trial under Article 10. Chief Judge McClelland wrote for a three-judge panel of the court. I discussed the CCA’s opinion in a post titled: The Coast Guard CCA raises Article 10 from the dead.
At trial in late 2013, Cooley entered conditional guilty pleas to numerous offenses, including attempting a lewd act with a child. The adjudged sentence included confinement for seven years, but in accordance with a pretrial agreement the convening authority suspended all confinement in excess of fifty months. A year later the CCA dismissed all of the charges (some with prejudice, others without). But the Judge Advocate General of the Coast Guard certified the case to CAAF on February 23, 2015 (discussed here), with two issues focusing on the question of prejudice for the speedy trial violation. CAAF then granted review of a third issue addressing the substantial information rule (discussed here).
CAAF’s caselaw holds that decisions of the service courts are not self-executing and that they remain “inchoate” during the time for certification by a judge advocate general. United States v. Miller, 47 M.J. 352, 361 (C.A.A.F. 1997). However,
After considering the matter, if the Judge Advocate General decides to certify a case to this Court, an accused’s interest in the favorable decision of the court below (even if inchoate) requires either that the accused be released in accordance with that decision or a hearing on continued confinement be conducted under RCM 305.
Id. at 362. The CCA’s decision should result in the release of Cooley from post-trial confinement. However, Chief Judge Baker’s dissent implies that he is being held in pretrial confinement, based at least in part on the offenses that the CCA ordered dismissed with prejudice.