In a published opinion in United States v. Banks, 75 M.J. 746, No. 20130948 (A. Ct. Crim. App. Aug. 16, 2016) (link to slip op.), the Army CCA holds that the Government is responsible for all post-trial delay incurred while waiting for the defense to submit matters to the convening authority, except for the maximum of 20 additional days of delay that may be authorized under Article 60(b)(2).

In United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006), CAAF found that three kinds of post-trial delay are presumptively unreasonable: (1) When the convening authority fails to take action within 120 days of the completion of trial; (2) When the case is not docketed at the CCA within 30 days of the convening authority’s action, and; (3) When the CCA’s decision is rendered more than 18 months after docketing of the case.

The first kinds of delay is at issue in Banks, as the convening authority took action 440 after the completion of trial. 153 of those 440 days, however, were spent waiting for the appellant’s defense counsel to submit matters to the convening authority. Article 60(b)(1) dictates that “such a submission shall be made within 10 days” of the accused receiving the record and staff judge advocate’s recommendation, and Article 60(b)(2) permits an extension of time “for not more than an additional 20 days.” Despite these statutory time limits, Army convening authorities often delay taking action to allow defense counsel additional time.

In Banks, the Army CCA finds “no authority for the government to grant an extension beyond twenty [additional] days.” Slip op. at 4. “Accordingly, we cannot relieve the government of their obligation to comply with Moreno.” Id.

The CCA then concludes that for the purposes of calculating the number of days under Moreno, the initial 10-day period and any excess time counts against the Government, while any extension under Article 60(b)(2) counts against the appellant:

[W]e hold that in calculating compliance with Moreno’s 120-day threshold, when considering submissions under R.C.M. 1105 the only time that may be excluded from the calculation is when the accused has requested (and been granted) a twenty day extension in accordance with Article 60(b). As after the authorized time has expired the convening authority is authorized to take action, any additional time taken by the defense will continue to accrue towards the Moreno 120-day presumption of unreasonableness.

Slip op. at 7.

18 Responses to “The Army CCA assigns blame for post-trial delay”

  1. DCGoneGalt says:

    Here’s my 2 cents – If the record is clear that the government was waiting for the defense and the defense kept requesting delays . . . IMO, it is just unfair to hold the government accountable.  It’s a potential windfall to the defense because the government is bending over backwards to ensure the defense gets their point across to the convening authority. 

  2. Allan says:

    Interesting.  The defense counsel must have done a good job on the merits.  I was surprised the this was an officer panel.  But I think a BCD for violation of a GO is a bit harsh.  In my experience, that is an Article 15 offense, or at worst, a summary court martial offense.  And it more likely deserved Article 15-type punishment.  My guess is that the sentence was some sort of compromise after finding not guilty on the sexual assault charge.
    I now know why the Chief of Military Justice at all of my assignments were field grade officers.  It is a thankless job with a bunch of technical requirements.  And, even when the CMJ does the right thing and does not object to a delay, the government is punished.
    Had I been on the CCA, my remedy would have been to keep all the punishment except the BCD.  If the government wanted to get rid of the soldier, I would have made them do it administratively. 

  3. Joseph Wilkinson says:

    The opinion has a good reminder to get your speedy post-trial demands in.
    (To which I will add, check the record and make sure the govt has actually included them.   I’ve seen them fail.)

  4. k fischer says:

    So, the next time a TDS attorney needs an extension to submit 1105 matters, the CA will deny citing Banks? Thanks, Ranger buddy! I nominate Banks for the first annual Blue Falcon award for appellants who are granted individual relief that has unintended second and third order adverse results for the next schlep. The Government could also be nominated for this award, as well.

  5. (Former)ArmyTC says:

    Or, k fischer, they will only grant the 20 day extension, and then staff the record up to the CA for initial action. The SJA advice simply says that the defense forfeited their 1105 matters due to failure to turn them in on time and advises the CA to approve the findings and sentence as is.

  6. anon says:

    ArmyTC, not sure how to resolve the tension between the government’s statutory duty and appellant’s (at least soon to be appellant) right’s to submit matters; however, CCAs are likely to kick back in a summary decision if they receive record with no 1105 submissions and appellant raises issue of post-trial IAC.  I’d say amend Article 60, but slim just left the building. 

  7. Vulture says:

    Will submit comment after grant of 10 day delay request.

  8. Concerned Defender says:

    Here’s the practical matter that is overlooked but totally unfair, based on my experience in TDS.  We had at most 2 reliable paralegals, maybe 3 on occasion.  And our office had ~ 5-7 Captains who tried cases.  Oh, and here’s a little game the SJA played with us.  We begged for more personnel since we were routinely under-strength.  Those ***** accommodated us by giving us an 8 month pregnant paralegal; and when we again asked for more help, the SJA gave us an 8 month pregnant lawyer.  Yeah.  Thanks.  
    I remember it being among the most busy professional period in my life.  Literally working 80+ hours per week, at work, doing trial/board prep, interviews, research, suspect rights counseling, trials, boards, MFRs, training, you name it.  So, our office was probably 10 individuals with NO investigators, NO civilians, etc. handling all the actions on our base, and also going TDY routinely to handle actions on other bases, or training.  We had no budget for supplies, and I remember how immensely frustrating the entire situation was.
    Conversely, I remember during Article 6 visits we’d get together with the rest of the JAG footprint – nearly a hundred JAGs!  Officers and paralegals who I didn’t even know were on the base.  Waves of them.  Ten brigades and the Corp/Division with waves of lawyers and paralegals combing over cases at all stages.  Civilians too.  Oh, and on top of that, the other unlimited resources like MPs, CID, civilians, supplies, etc.  
    The point of this illustration is that it’s total malarkey to expect the TDS counsel to process the action within such artificially short time-frames.  There is such a disparity in personnel, resources, and power (they control the optempo for all actions) that the defense should really get significant leeway in processing.  The SJA office has such an unfair advantage at every stage that it should really re-allocate some resources… 

  9. Zeke Kennen says:

    That’s why the answer is for the accused to request the additional 20 days and then submit a statement that asserts only IAC by the government in that it detailed him counsel that was not reasonably available to assist him with the submission of clemency matters.  The government controls defense counsel manning, and is therefore responsible for the consequences of that manning being inadequate.
    That’s an approach that is more likely to get the accused relief in clemency than any sob story would have anyway.

  10. Philip Cave says:

    I think CD makes a great point.  And he and his office-mates would not be and are not alone.  I believe some of these issues were addressed in the JPP and have been raised in some fashion to Congress.  But I’m not sure there’s much traction on that.  Maybe because an accused is not a “victim.”  And so resources go to where the pressure is.
    One of the trends I’ve noticed in the last few years is the impact on my own cases (and I’m not alone on this).  Up until a few years ago it was usually my schedule that was causing a delay for availability.  But now it seems I’m available much more earlier than the MDC and it’s their trial schedules that are a cause for pushing cases out.  Of course, in either situation the gubmint can blame the defense for delays when doing the metrics.  By that method an unsophisticated looker at the metrics alone sees that the defense is delaying cases without looking at the underlying causes for why the defense needs delays.
    Zeke.  This is an interesting approach.  I remember some years ago in Louisiana, and I believe I’ve seen some reporting on this for some other jurisdictions, there was extensive litigation on resourcing of public defender offices and how the lack of resources and caseloads affected the ability to provide effective assistance of counsel.  This more recent article seems to indicate things have not changed.

    And perhaps take a look here:
    If I’m correct, there might be something in those cases to use now with your theory.  Worth the read and possible effort.  Also, there may be some old Navy litigation on this.  I know there was a period of time Navy DC where frequently making motions to fund a private investigator.  At the time one of the gubmint’s answers was to provide a NCIS agent.  But for various reasons that didn’t work too well, and ultimately I believe the NCIS made a regulation change to prohibit assignment of agents as defense investigators.  I remember at the time the case by case assignment was suggested to be a good training “tool.”

  11. Tami a/k/a Princess Leia says:

    I saw this coming a few years ago.  The rules are very clear–defense gets 10 days to submit clemency and one delay of up to 20 days and that’s it.  If the defense doesn’t submit in a timely manner, then the government takes the case to the convening authority as is.  Nothing permits the government to wait for an accused’s untimely post-trial submission.  Not even the death penalty (which would be an interesting appellate issue, since we all know “death is different.”)
    What boggles my mind about this case is that the DC was leaving active duty and going on terminal leave shortly after the trial ended.  Even though it took 9 months for the government to get the ROT and SJAR done and served on the accused with the SJAR, the facts suggest most of the delay was attributed to (who reviewed 9,000 pages).  So I assume that by the time the ROT and SJAR were done and served that the DC’s responsibility was definitely in a civilian counsel capacity, so this isn’t a “government manning” issue at all. 
    Whether in a military or civilian capacity, the defense’s delay in submitting clemency matters was ineffective assistance of counsel.  Sounds like if IAC had been raised, ACCA wouldn’t have granted relief, because even assuming deficient performance (which clearly there was for blowing a deadline), appellant suffered no prejudice.  So why grant relief for government delay that had always been, up until now, overlooked, and the government could legitimately claim it was in a catch-22? 
     ACCA should’ve just used this case to put everyone on notice going forward that the government would be held accountable for delay in waiting for untimely submissions (and defense could be held accountable for IAC for missing deadlines).  I wonder if TJAG will certify this to CAAF?

  12. Philip Cave says:

    The sky is not falling–at least not completely.

    [R]recent amendments to Article 60 have dramatically altered the convening authority’s ability to grant clemency. Almost all cases referred to this court are referred pursuant to Article 66(b)(1). That is, cases in which the approved sentence extends to death, a dismissal or punitive discharge, or a term of confinement of more than one year. With this class of cases, unless the case involves charges that predate the amendments to Article 60, the convening authority is prohibited from modifying the findings or ordering a rehearing, and may take action only on that part of the sentence that does not include a discharge or confinement of more than six months. When one considers the automatic reduction and forfeiture provisions of Articles 58a and 58b, the convening authority’s ability to give meaningful relief as part of his action may be minimal in many cases.  Delay that may have been tolerable when it at least served to inform the convening authority’s broad clemency powers becomes less tolerable when that authority is substantially diminished. 

    (Can it be IAC under Strickland and CAAF jurisprudence to miss a deadline where there is no opportunity for relief–IRT the second prong?)
    I say not totally falling, because many of us know of stale sexual assault cases from as much as 19 years old in the system.  Those of course have been committed on or before 23 June 2014.

  13. Tami a/k/a Princess Leia says:

    In this case there was an opportunity for relief, the CA could’ve disapproved, reduced, or suspended confinement, as it was only 30 days.  Would the CA have granted clemency?  I highly doubt it.
    A bigger quagmire is accounting for a victim’s post-trial submissions.  A victim (not just a sexual assault victim) who testified is entitled to get a copy of the ROT and SJAR and submit comments within 10 days of receiving both.  And for good cause, can get one extension of up to 20 days.  So what happens when the victim doesn’t submit post-trial matters in a timely manner?  I say the victim has forfeited the right and the government must proceed without them.  Hopefully this case will serve as a wake-up call to MJ shops that delay taking action to wait for victim post-trial submissions.
    I think the rule should be changed to give an accused 30 days to submit post-trial matters, with a 15 day extension for good cause, followed by an additional 10 days to respond to new matter. 
    Even though the CA’s discretion is extremely limited now, post-trial submissions are still valuable for identifying appellate issues.  So I would say it can be IAC to miss the deadline for submitting post-trial even when the CA has no discretion to provide relief.

  14. Philip D. Cave says:

    Even though the CA’s discretion is extremely limited now, post-trial submissions are still valuable for identifying appellate issues.  So I would say it can be IAC to miss the deadline for submitting post-trial even when the CA has no discretion to provide relief.

    I agree, and in appropriate cases a UCMJ art. 38(c) submission is definitely appropriate.  See UCMJ art. 38(c)(1).  But I do think a DC can satisfy their Palenius obligations with a separate letter to the appellate defense shop, and therefore avoid IAC on that particular point.  See United States v. Palenius, 2 M.J. 86 (C.M.A. 1976); UCMJ art. 38(c)(3).  BTW, I’m not aware of a case holding it to be IAC to fail to submit a 38(c) brief, else their could be a lot of them.  As an appellate counsel I do value and use 1105 submissions that raise issues, and even if I don’t brief them, the current practice would be to ask the appellate court to consider the 1105 identified legal issues under United States v. Grostefon.

  15. Philip D. Cave says:

    “there” not “their.”

  16. Tami a/k/a Princess Leia says:

    Of course, this might not be a problem if the Army had a Military Justice track.

  17. stewie says:

    Tami, to your last point, it seems to me both from a personal and a holistic viewpoint, that the Army is more recently taking a less negative view towards promoting crim law experts…but not enough data points to know if that’s a trend or a statistical blip.
    Why not simply change the rule to give a CA authority to grant requested defense delay at his/her discretion? Wouldn’t that solve all of this?

  18. Contract Lawyer says:

    it has been a while since I served as a DC, but I recall the rule always being 10 + 20 for 1105 submissions after being served the ROT.  if I needed an extra day or so, I could informally get it if the last day was a Friday or weekend day because they would not prepare the action until the next business day, but otherwise we had to get the 1105 submission in on time and there was no authority for additional time.  It would seem to me if additional delays are requested and approved, it would be bad policy to now argue that the Govt is responsible for the time because that means no such delays will be granted in the future. This argument probably works for this one case and denies this option for DC in future cases unless a local MJ shop and SJA wants to eat the time.  
    There is not much left I. There does not seem to be as much left in the 1105 realm these days, but it is a good opportunity to issue spot for good appellant issues and serves as a memo for defense appellate division.  The 1105 submission is also one last chance to keep the faith with the accused.  If you allege a bunch of conspiracies your client will love you and reduces the chance of getting IAC claims.