CAAF decided the certified Coast Guard Case of United States v. Cooley, 75 M.J. 247, No.s 15-0384/CG & 15-0387/CG (CAAFlog case page) (link to slip op.), on Friday, May 6, 2016. In a lengthy opinion addressing a complicated factual scenario, CAAF affirms the decision of the Coast Guard CCA that dismissed the charges (all but one with prejudice) for violation of Cooley’s right to a speedy trial.

Judge Ryan writes for a unanimous court.

Pursuant to a pretrial agreement Cooley entered conditional pleas of guilty, at a general court-martial composed of a military judge alone, to four offenses: 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.

The conditional pleas reserved Cooley’s right to appeal the question of whether he was denied his right to a speedy trial. The court-martial occurred in 2013 – the same year that we declared the death of Article 10. However, in late 2014 the Coast Guard CCA found a violation of Cooley’s Article 10 right to a speedy trial, and also a violation of the R.C.M. 707 speedy trial rule, and it dismissed the charges (three with prejudice, one without). In making those findings the CCA also concluded that pretrial confinement is prejudicial to the rights of an accused no matter how well such confinement is justified. The Judge Advocate General of the Coast Guard then certified the case to CAAF with two issues challenging the CCA’s conclusions, and CAAF subsequently granted review of an additional issue:

Certified Issues:
I. Whether the Coast Guard Court of Criminal Appeals erred by finding that pre-trial confinement can serve as per se prejudice for purposes of determining a violation of Article 10, Uniform Code of Military Justice.
II. Whether the facts and circumstances or Appelle’s case, considering the factors set out in Barker v. Wingo, 407 U.S. 514, 530 (1972) and applied to review of Article 10 by United States v. Birge, 52 M.J. 209, 212 (C.A.A.F. 1999), amount to a violation of Article 10, Uniform Code of Military Justice.

Granted Issue:
Whether the government violated Appellant’s rights under Article 10, UCMJ, when the Government possessed key evidence against Appellant on July 20, 2012 and Feberuary 5, 2013, yet made no move to prosecute Appellant for these offenses until June of 2013, despite his pretrial confinement from December 20, 2012.

With yesterday’s decision CAAF issues its most significant Article 10 decision in years. While the court rejects the CCA’s conclusion that pretrial confinement is per se prejudicial, and also overrules the substantial information rule, the court reanimates the seemingly dead Article 10 speedy trial right by castigating the Government for its lack of diligence in avoiding pretrial delays and concluding that “this case is the outlier that warrants the interposition of Article 10, UCMJ, to fill the interstice in speedy trial rights left open by R.C.M. 707.” Slip op. at 13.

Judge Ryan’s opinion begins with a lengthy recitation of the complex factual background for the speedy trial issue. The facts include three sets of charges and a trial-stage dismissal of the case without prejudice for violation of the regulatory speedy trial right in R.C.M. 707. Cooley remained in pretrial confinement for much of the pretrial period, ultimately serving a total of 289 days of continuous pretrial confinement before he entered his guilty pleas. Additional charges were added during that time, though only one of the new charges (possession of apparent child pornography) resulted in a conviction.

The CCA dismissed three of the charges with prejudice (meaning that Cooley may not be prosecuted anew) for violation of Article 10, and the fourth (the child pornography) charge without prejudice for violation of the 120-day regulatory speedy trial right in R.C.M. 707. These divergent results were the product of the length of delay associated with each charge: 289 days of pretrial confinement in connection with the first three convictions (confinement began on December 20, 2012; trial occurred October 3, 2014), but only 112 days of delay in connection with the fourth (preferred on June 14, 2013). CAAF ultimately affirms these actions, though it doesn’t endorse the CCA’s reasoning that found a violation of R.C.M. 707 after only 112 days of delay.

The granted issue sought to convert the dismissal without prejudice into one with prejudice through application of the substantial information rule. That rule was judicially created in 1974 to address situations where an accused was placed into pretrial confinement on some charges and then additional charges were added; it started the Article 10 speedy trial clock (distinct from the R.C.M. 707 speedy trial clock that didn’t yet exist) for additional charges on the date when the Government had substantial information to prefer them (and not on the generally-later date of actual preferral). It was scrutinized – but not applied or expressly overruled – earlier this term in United States v. Wilder, 75 M.J. 135 (C.A.A.F. Mar. 7, 2016) (CAAFlog case page). But now CAAF overrules the substantial information rule entirely:

Under R.C.M. 707, the clear speedy trial trigger for offenses for which an accused is not confined is the date of preferral, and the clear trigger for offenses for which an accused is confined is the date of confinement, although the latter is also subject to the greater protection of Article 10, UCMJ. See Wilder, 75 M.J. 135.

We therefore overrule the “substantial information” rule. Because Appellant was not confined for the possession of actual child pornography charge, Article 10, UCMJ, did not apply to that charge, and the CGCCA did not err in concluding that there was no Article 10, UCMJ, violation with respect to that offense.

Slip op. at 16. Yet the Coast Guard CCA applied the substantial information rule to find a violation of R.C.M. 707 on the basis that the Government could have brought the child pornography charge earlier than it did, and CAAF allows this action to stand as the law of the case:

The CGCCA dismissed the child pornography specification of the New Charge without prejudice under R.C.M. 707 because it deemed the trigger for speedy trial purposes for that charge was the date on which the Government possessed substantial information. Cooley, 2014 CCA LEXIS 936, at *24–25. This holding is clearly at odds with our recent decision in Wilder, 75 M.J. at 138 (“[W]e do not hesitate to conclude that when analyzing a speedy trial violation under R.C.M. 707, it is the earliest of the actions listed in R.C.M. 707(a) with respect to a particular charge that starts the speedy trial clock for that charge.”), but that case was decided after the CGCCA’s decision. The Government did not certify the CGCCA’s decision on that point, and the question whether the CCA erred in its R.C.M. 707 analysis is not before us. See Parker, 62 M.J. at 464. Moreover, we are mindful of the fact that an accused should not be prejudiced by the appellate review process. See, e.g., United States v. Smith, 39 M.J. 448, 451 (C.M.A. 1994); United States v. Dean, 7 C.M.A. 721, 724–25, 23 C.M.R. 185, 188–89 (1957).

Slip op. at. 13 (emphasis added).

As for the other three offenses, the CCA dismissed them with prejudice (the only possible remedy for a violation of Article 10), and CAAF affirms. Judge Ryan’s opinion sets no new precedent for how an Article 10 violation is assessed, as she applies the non-exclusive four factors articulated by the Supreme Court in Barker v. Wingo, 407 U.S. 514, 530 (1972). Those factors are: (1) length of the delay; (2) reasons for the delay; (3) whether the appellant demanded a speedy trial; and (4) prejudice. The analysis begins:

On the facts before us, the length of the delay is unreasonable. Even though we accept that the First Charges involved a complex investigation, no additional investigative action is reflected in the record after March 2013. The charges in Cooley I that were dismissed without prejudice for violating the speedy trial rule in R.C.M. 707 in May 2013 were virtually identical to the charges finally brought to trial in October 2013 in Cooley III, and all information related to the New Charge of possessing child pornography appears to have been in the Government’s possession by March 2013. Moreover, despite Appellant’s multiple speedy trial demands, the Government did not respond to these requests in an adequate fashion. On these facts, the delay of 289 days is unreasonable and a sufficient trigger for a full Article 10, UCMJ, analysis. See Wilson, 72 M.J. at 352. This factor weighs heavily in favor of Appellant.

Slip op. at 18-19 (emphases added).

Judge Ryan then turns to the reasons for the delay, and she finds that the military judge’s findings of fact (that the Government acted with reasonable diligence) are not supported by the record:

There is nothing in the record supporting the reasons for the delay between May and October other than a belated decision to pursue a new charge that was not, in fact, new, and broad statements about the difficulty of the investigation and trial logistics.

Slip op. at 21. Notably, this portion of Judge Ryan’s analysis acknowledges “the preference for joining all known charges in a single proceeding,” but does not accept that preference as an appropriate justification for delay.

The third factor is Cooley’s multiple demands for a speedy trial, which were undisputed.

Finally, Judge Ryan turns to prejudice, which is where many speedy trial claims ultimately fail. First she rejects the CCA’s conclusion about inherent prejudice from pretrial confinement:

Given that Article 10, UCMJ, is triggered only when an accused is in pretrial confinement, the prejudice prong of the balancing test triggered by pretrial confinement requires something more than pretrial confinement alone. This Court has never held that the mere fact of pretrial confinement constitutes prejudice. To the extent the CGCCA held that there was “no need to address [Appellant’s] specific items of alleged prejudice” because “the prejudice of confinement itself weighs significantly against the Government,” it erred.

Slip op. at 22 (citations omitted) (marks in original). But then she identifies a different prejudice sufficient to justify relief under Article 10 – disruption of Cooley’s use of an expert witness:

While we find only minimal prejudice from the delayed expert assistance, that is enough to tip the balance in Appellant’s favor. First, the Government forced Appellant to relitigate a request for expert assistance that had previously been approved by a military judge — despite the same charges being included in Cooley III that were included in Cooley I — resulting in further delay. Second, the expert appointed was not, as the military judge ordered, from AFCCP, but rather one whose “normal practice does not include sex offender treatment” and instead “includes outpatient treatment of most psychiatric disorders affecting children, adolescents and adults.” Third, “[d]ue to issues related to the advance notification required to cancel appointments with existing patients,” the expert was unable to meet with Appellant until September 30, 2013, four days before the general court-martial, and was unable to administer at least six sexual offender-related tests because he did not have the time. As a result, the expert was only able to form a limited impression of Appellant. Appellant ultimately did not call the expert at trial.

Based on the rulings by two different military judges who determined that expert assistance was necessary, there was a “reasonable probability” that the sentencing determination would have been impacted by the requested defense expert’s presentation of mitigating evidence. Because the Government’s delay created a situation in which it appears Appellant was hampered in his ability to present evidence in mitigation, the prejudice prong of the Barker analysis weighs, however slightly, in Appellant’s favor.

Slip op. at 23.

This conclusion on prejudice is somewhat surprising as Cooley agreed to plead guilty with a 50-month cap on confinement and credit for all pretrial confinement. It’s hard to imagine that the mitigating impact of the defense expert could have been so powerful as to reduce the adjudged sentence in a meaningful and non-speculative way, and it’s much easier to imagine CAAF resolving this factor in favor of the Government. And yet it didn’t.

Perhaps this signals a significant shift in the court’s feelings about Article 10. The statute dictates that “immediate steps shall be taken to inform him of the specific wrong of which he is accused and to try him or to dismiss the charges and release him.” CAAF may have brought this protection back to life in order to ensure that the Government applies it diligently.

Case Links:
• CGCCA opinion
Blog post: The Coast Guard CCA raises Article 10 from the dead
Blog post: The Coast Guard certifies Cooley
Blog post: AAF rejects expedited review in Cooley
Blog post: Cooley pursues habeas
Government brief on certified issues
Appellee’s brief on certified issues
Government’s reply brief
Appellee’s brief on granted issue
Government brief on granted issue
Appellee’s reply brief
Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

3 Responses to “Opinion Analysis: A reanimated Article 10 in United States v. Cooley, No.s 15-0384/CG & 15-0387/CG”

  1. westpointquaker says:

    Just out of curiosity, how did you get this opinion?  CAAF’s website is down.  Do you have special inside connections? 

  2. publius-publicola says:

    This is the pot calling the kettle black.  As I understand it, the CCA set aside appellant’s case in Dec 2014.  In Feb 2015, the JAG certified the CCA’s decision to CAAF, and the CA then transferred appellant from being a post-trial confinee to being a pretrial confinee.  Appellant has been in pretrial confinement since then.  Although appellant sought expedited review of his case before CAAF and a writ of habeas corpus to be released from pretrial confinement during appellate review of his case, CAAF denied the expedited review and the writ.  Instead of expeditiously disposing of this time-sensitive case, CAAF sat on it from February to October, when it finally heard oral argument.  Now in May, 2016, CAAF issues its opinion – over 400 days after Appellant was placed in pretrial confinement.  Doesn’t Article 10 apply to CAAF – “When any person subject to this chapter is placed in arrest or confinement prior to trial, immediate steps shall be taken … to try him or to dismiss the charges and release him.”  Clearly CAAF did not take immediate steps – rather it appears CAAF took the spring and summer off.  Good for the judges, bad for appellant.  CAAF should be ashamed of itself.  The evolution of this appeal unfolds like a messy primer on appellate review.   

  3. Vulture says:

    P-P.  I guess we won’t be having Scholarship Saturday then.