CAAF will hear oral argument in the Army case of United States v. Gonzalez-Gomez, No. 17-0200/AR (CAAFlog case page), on Tuesday, October 24, 2017, after the oral argument in Short. A single issue questions the 2 years, 1 month, and 20 days it took a three-judge panel of the Army CCA to issue a published decision in the case. That decision granted relief for the 1 year, 9 months, and 3 days it took the convening authority to act on the result of trial; a length of time CAAF’s precedent presumes to be unreasonable. Writing for the panel, Senior Judge Mulligan noted that:

The only plausible explanation for this extraordinary delay is a total lack of rigor and accountability in the SJA’s office.

United States v. Gonzales-Gomez, 75 M.J. 965, 969 n.3 (A. Ct. Crim. App. Nov. 30, 2016) (link to slip op.). In a concurring opinion Judge Wolfe added:

These delays reflect a lack of leadership, not resources. It is carelessness so stark the United States does not even try to defend it. Given the egregiousness of the delay, and the lack of any effort to explain it, I would find this convening authority and his staff violated appellant’s due process rights.

75 M.J. at 969 (Wolfe, J. concurring). The panel found no due process violation, however it reduced the adjudged sentence by 180 days.

Private (E-1) Gonzales-Gomez was sentenced to confinement for six years and a dishonorable discharge. The convening authority approved the sentence as adjudged. Gonzales-Gomez was released from post-trial confinement on November 29, 2016; one day before the Army CCA’s decision that reduced his sentence by 6 months.

CAAF then granted review to determine:

Whether dilatory post-trial processing violated Appellant’s due process rights and warrants relief when 782 days elapsed between docketing at the Army Court and opinion.

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.

It seems like all three of these Moreno deadlines were violated in this case.

Gonzales-Gomez was sentenced on November 30, 2012. 75 M.J. at 969; App. Br. at 1; Gov’t Div. Br. at 2. The convening authority acted 641 days later, long past the 120-day Moreno limit. 75 M.J. at 969. The CCA’s opinion does not give the date of that action, but 641 days after November 30, 2012, is September 2, 2014 (link to calculation). The case was docketed at the CCA 38 days later, on October 10, 2104. App. Br. at 3; Gov’t Div. Br. at 3.

While the CCA’s opinion doesn’t give the date of the convening authority’s action, Senior Judge Mulligan’s majority opinion states:

The [Staff Judge Advocate’s Recommendation] was not signed until 1 September 2014, 610 days after appellant’s court-martial.

75 M.J. 969. But September 1, 2014, is 640 days – not 610 days – after November 30, 2012 (link to calculation). The briefs do not address this apparent error in the CCA’s opinion.

Once the case was docketed at the CCA it took 188 days for Gonzalez-Gomez to file his brief, 208 days for the Government Appellate Division to respond, and another 386 days for the CCA to issue its opinion. That opinion – 1 of only 21 published opinions of the CCA issued in 2016 – is just 8 pages long (including the separate concurring opinion).

Under Moreno, dilatory post-trial processing is evaluated by balancing the four-factor test from Barker v. Wingo, 407 U.S. 514, 530 (1972): (1) the length of the delay; (2) the reasons for the delay; (3) the appellant’s assertion of the right to timely review and appeal; and (4) prejudice. “No single factor [is] required to find that post-trial delay constitutes a due process violation.” Moreno, 63 M.J. at 135.

Gonzales-Gomez’s brief categorizes the 782 days it took the Army CCA to decide his case as “extraordinary.” App. Br. at 5. It then observes that “the Army Court failed to provide any reason whatsoever for their extraordinary delay in this case.” App. Br. at 6. Gonzales-Gomez did not specifically assert his right to timely appellate review, but his brief asserts that he “implicitly asserted this right” by raising the issue of dilatory post-trial processing. As for prejudice, the brief claims that:

Had the Army Court met the eighteen month standard, the opinion would have been issued 242 days earlier, allowing PV1 Gonzalez-Gomez to benefit from the Army Court’s relief as he would have been released from confinement 180 days earlier.

App. Br. at 8.

The Government Division, however, disagrees that an earlier decision would have guaranteed an earlier release from confinement:

The appellant was originally sentenced to serve six years in confinement for forcible sodomy and other offenses. The appellant actually served four years of that time. The record contains no indication as to why the appellant was released from confinement on November 29, 2016. . . . The mere fact that the Army Court reduced the appellant’s sentence of confinement does not necessarily mean that his release date would change by a corresponding amount, if at all.

Gov’t Div. Br. at 12-13. It’s normal for a military prisoner to serve less than the adjudged sentence based on credits received for good conduct, working while confined, participating in rehabilitation programs, and other activities, but the Government Division does make a valid point that there is no guarantee that an earlier CCA decision would have resulted in an earlier release from confinement.

Prejudice, however, is only one of four factors, none of which is required for a finding of a due process violation. Addressing this, the Government Division’s brief argues:

The appellant has failed to show prejudice as a result of the Army Court’s delay in the appellate processing of his case. Without a finding of prejudice, this court should “find a due process violation only when, in balancing the other three factors, the delay is so egregious that tolerating it would adversely affect the public’s perception of the fairness and integrity of the military justice system.” Toohey, 63 M.J. at 362. This is not such a case. While two of the Barker factors weigh in the appellant’s favor, they do so only slightly. Furthermore, the egregious delays present in cases such as Moreno and Dearing are not present in this case. In those cases, the delay was the primary result of personnel issues and inattentiveness by counsel. In the appellant’s case, however, the delay only exceeded the Moreno threshold by a matter of months, not years, and was due in large part to the decision-making process of the Army Court, which resulted in a well-reasoned opinion that not only reduced the appellant’s adjudged sentence but also serves as future precedent for the Army. As the appellant’s due process rights were not violated, he is not entitled to relief.

Gov’t Div. Br. at 14. This argument, however, implicates a double standard. The Army CCA had this case for 782 days. That time wasn’t largely due to the decision-making process of the Army court, it was entirely due to the decision-making process of the Army court. “Article 66(c), UCMJ, requires that the CCAs conduct a plenary review,” of each case. United States v. Chin, 75 M.J. 220, 222 (C.A.A.F. 2016). Such a review begins when the case is docketed, not when the briefs are finished, particularly since the briefing schedule is up to the Army court. Furthermore, to argue – as the Government Division does – that the delay in this case was only largely due to the CCA’s decision-making process suggests that when a CCA allows an extension of time to file a brief, that extension and the resulting brief aren’t part of the decision-marking process.

It’s worth mentioning that the Army CCA’s rules of practice include a unique rule that almost certainly contributed to the delay in this case. Under Rule 24.1(c) of the Army court’s rules, the Defense and Government Appellate Divisions each get two, 90-day extensions of time in each case. The rules explain that:

A consolidated motion for extension of time to file must indicate that the division chief or acting division chief has determined that the extensions requested are necessary in the interests of justice due to the volume of appellate workload then pending in the division.

R. 24.1(c)(3). So, according to the CCA’s rules, appellate workload (a function of the Government’s assignment of resources to the appellate divisions) justifies an additional 360 days of delay.

The judges of the CCA decried “a total lack of rigor and accountability in the SJA’s office,” “a lack of leadership, not resources,” and “carelessness so stark the United States does not even try to defend it.” It will be hard to escape the irony of those words during next week’s oral argument.

Case Links:
ACCA opinion (75 M.J. 965)
Appellant’s brief
Appellee’s (Army Gov’t Appellate Div.) brief
Appellant’s reply brief
Blog post: Argument preview

10 Responses to “Argument Preview: What took the Army CCA so long, in United States v. Gonzalez-Gomez, No. 17-0200/AR”

  1. stewie says:

    It’s like rainnnnnnnnnn….

  2. Bill Cassara says:

    In all fairness all those promotion parties and awards ceremonies take a lot of time.

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

    It’s a death row pardon two minutes too late….

  4. Rocky says:

    Are anybody else’s spidey-senses tingling on this one???

  5. DCGoneGalt says:

    Moreno’s the good adviiiiiiiiice
    That you just didn’t take
    . . . . . . . . . . .
    Well, six years of delay has a funny way of sneaking up on you
    When you think everything’s ok and everything’s going riiiiiiiight
    . . . . . . . . . . . .

  6. A Random JAG says:

    This is bizarre.  How does the opinion come out literally the day after release?  Either that is highly coincidental, or highly suspect.  I wonder if that gets addressed at oral argument.

  7. stewie says:

    A Random JAG, it’s like a traffic jam when you are already late, or a no smoking sign on your cigarette break…or maybe it’s ten thousand spoons when all you need is a knife (maybe you shouldn’t have gone shopping at Only Spoons Alanis, also, please re-read the definition of irony).

  8. A Random JAG says:

    And who would’ve thought it figures…
    (to be fair to Alanis, have you considered that maybe the song is meta-irony, in that she intentionally chose non-ironic lyrics??)

  9. Concerned Defender says:

    Case history.  Nov 2012 conviction.  FOUR YEARS later Nov 2016 an ACCA opinion, and now 10 months later a CAAF argument… in total this is a month shy of FIVE YEARS to even hear an argument…. 
    And in this case, note the 2016 ACCA ruling:

    Although the military judge may have avoided the possibility of an unjust appellate windfall, by not dismissing the specifications at trial, he created new problems. When appellant’s trial ended, he stood convicted of three specifications of sexual misconduct for one act. There appears to be universal agreement that only a single specification was appropriate and legally correct. 
    The issue of careless slow indifference plagues the entire military justice arena in my experience.  The SLLLOOOWWWW and INDIFFERENT attitudes starting in the TC chair, migrating to the CoJ chair, then to the SJA office, and right on into the Review Boards and even the appellate courts.  Justice delayed is justice denied.   There really needs to be prompt standards and real personal and professional consequences for not resolving cases faster.  It plagues all of the legal system, in truth.  

    The convening authority took action on appellant’s case 641 days after the panel sentenced appellant on 30 November 2012. The record of trial contains no explanation why the transcription of the 765-page, six volume record of trial required 406 days. It required an additional 180 days to place the authenticated record of trial in the mail to be served on appellant. The SJAR was not signed until 1 September 2014, 610 days after appellant’s court-martial. The government concedes on appeal it has no reasonable explanation for the delay in either transcribing the record or in serving the authenticated record on appellant…

    We’ve made things so overwhelmingly and needlessly complicated that it takes years to decades to figure out the plain meaning of terms like “consent.”  It’s a self-perpetuating absurdity and comedy of errors which is partly why the regular population HATES lawyers.  And to the point that obvious errors are missed by the TC, DC, MJ, and apparently the SJA and the CG.  And it takes FOUR YEARS to correct an obvious error.  This is such a fundamental point that it is bewildering how it would escape the (careless, indifferent, ill-trained?) attention of all these lawyers… 
    And then there’s the ACCA inadequate relief.  The accused was convicted in 3 ways for the same allegation, and received a sentence of 6 years and a DD.   I cannot say that was an appropriate or inappropriate sentence for those 3 convictions.  However, I can say it’s common sense that the Panel probably or quite possibly broke it down as humans do – how much for each conviction?  And since 2 of them were later struck, it only makes sense to reduce the total sentence commensurate to this.  Relief of ONLY 180 days for the slow processing time is a bewildering ACCA ruling that offers no real credit for the elimination of 2/3rds of the sex assault charges for which he was convicted?  Once again it makes no logical sense and confirms the prosecution bias of most MJs.  I do applaud Judge Wolfe in his separate concurring opinion:

    Additionally, this court often enforces deadlines, tests counsel’s effectiveness at trial, and, when warranted, holds individuals accountable for the performance of their duties in the military justice system. See United States v. Banks, 75 M.J. 476 (Army Ct. Crim. App. 2016) (holding defense counsel to their statutory allowed time for post-trial). I see little reason not to do so here.4 See Army Reg. 27-26, Legal Services: Rule for Professional Conduct for Lawyers, Appx. B, R.1.1 (Competence), R.1.3 (Diligence) (1 May 1992) (“A lawyer shall act with reasonable diligence and promptness in representing a client and in every case.”). 

    Maybe more professionals need to be hired, maybe less cases need to be preferred, maybe more lawyers need to be disbarred because of bad decisions so good lawyers rise to these positions, maybe some licenses need to be dangled in front of lawyers to ensure correct and timely advice and decisions –  If you’ve ever wondered why, it’s in part because it takes lawyers arguing over common terms years to come to some absurd result.  It’s the needless focus on minutia while missing the big issues that is infuriating…
    I’m just frankly sick and tired of seeing injustice and zero real world consequences for the injustice for those perpetrating it – basically state sanctioned assaults and wrongful confinements.  It’s just become such a routine occurrence where defense counsel just expects the SJA office to violate rules, fail to act timely, violate due process, and so forth.  What really should be an uncommon event is almost daily discussion on new cases here and elsewhere.  And I have several current cases where the violations of due process and rights are so plain that I really question whether the SJA lawyers should be practicing law.
    As Judge Wolfe wrote, 

    I would find that the unreasonable and unexplained delay in this case constituted a violation of the due process rights of appellant. …. More broadly, faced with numerous cases of excessive post-trial delay, I am concerned this court’s routine granting of sentence reductions may be causing more harm than good. Specifically, by granting sentencing relief in such cases we engender a moral hazard where such relief is assumed and expected—thereby diminishing the impetus to get it right in the first instance. There is scant evidence that our routine reduction of justly-earned sentences serves to spur proper post-trial process or deter lethargic post-trial processing. The opposite may be the more likely—we may be greasing the wheels of apathy. 

  10. stewie says:

    A Random Jag, possible, and it would be in keeping with her start on You Can’t Do That On Television.