CAAF decided United States v. Wilson, No. 13-0096/AR, (opinion) (CAAFlog case page) on July 11, 2013, finding that Appellant’s right to a speedy trial under Article 10 was not violated and affirming the decision of the Army Court of Criminal Appeals.
Judge Erdmann writes for the court, joined by Judges Ryan and Stucky. Chief Judge Baker dissents, joined by Senior Judge Cox who also writes a separate dissenting opinion.
Appellant was convicted by a general court-martial composed of a military judge alone, pursuant to mixed pleas, of various drug offenses and an orders violation, and sentenced to reduction to E-1, confinement for 40 months, and a bad-conduct discharge. Pursuant to a pretrial agreement, the convening authority approved only 21 of the 40 months of confinement, and he credited Appellant with 174 days of pretrial confinement. Those 174 days are the heart of the matter before CAAF, which granted review to determine: “Whether Appellant was denied his right to a speedy trial in violation of Article 10, UCMJ, when the Government failed to act with reasonable diligence in bringing him to trial.”
After the court granted review, we remarked that the case presented a Monty Python-esque protest by Article 10 that it’s “not dead yet.” Many trial practitioners know better, as the putrefying corpse of Article 10 is a great topic for brief-writing, but invariably a loser for the defense.
And so it continues in Wilson, as a sharply divided court finds that despite “several periods of unexplained or unjustified delay,” (slip op. at 19) Appellant’s “Article 10 right to a speedy trial was not violated” (Slip op. at 20). Just Erdmann begins his opinion by noting that Appellant raised only an Article 10 claim at CAAF, and he limits his analysis to this statutory guarantee (and does not discuss the regulatory guarantee of R.C.M. 707 or the constitutional guarantee of the 6th Amendment). Slip op. at 4. The issue was extensively litigated at the trial stage, where Appellant was denied relief, and CAAF enjoys a well-developed record to review (a point Judge Erdmann notes in footnote 14).
Early in the opinion, Judge Erdmann re-states the settled principle that Article 10 “imposes on the Government a more stringent speedy-trial standard than that of the Sixth Amendment.” Slip op. at 8 (marks and citation omitted). A long footnote reveals that this “more stringent” standard is found only in the invocation of the legal analysis, and not in its actual application:
While the federal circuits seem to require a delay approaching a year to review Sixth Amendment speedy trial claims, a much shorter delay will trigger the full Barker analysis in an Article 10 case. Indeed, in Wilson’s case, even the Government concedes that the pretrial delay of 174 days “would likely constitute a facially unreasonable delay.” Thus, while Chief Judge Baker’s dissent suggests that this court has viewed the “more stringent” Article 10 standard as essentially the same as the Sixth Amendment standard, this very case is evidence of the application of a more stringent standard for speedy trials in the military.
Slip op. at 9 N.2 (citations omitted). In other words, the fire to which the Government’s feet will be held is rhetorical. And Judge Erdmann’s application of the four factors identified by the Supreme Court in Barker v. Wingo, 407 U.S. 514, 530 (1972), to the facts of this case seems to be just that, as he repeatedly shifts the burden to Appellant.
First, Judge Erdmann concludes that the 174 days of pretrial confinement is, under the circumstances of this case, “sufficient to trigger the full Barker analysis.” Slip op. at 11. But “[i]n its brief the Government concedes that the 174-day delay ‘would likely constitute a facially unreasonable delay.’” Slip op. at 11. So, no surprise here.
Second, Judge Erdmann adopts the trial judge’s allocation of responsibility for the 174 days, with 16 days attributed to the judge, 43 days attributed to the Defense, and 115 attributed to the Government. Slip op. at 12. The trial judge also noted three specific time periods that he found to be “improper and to reflect a lack of proper diligence in a case involving a confined accused” (slip op. at 13), “not justified” (Id.), and “unusual and unjustified” (Id.). Judge Erdmann and the majority:
share the military judge’s concern that there appear to be “several periods during which the Government seems to have been in a waiting posture.” The Government is tasked with handling cases with “reasonable diligence,” and the inattention to timeliness in Wilson’s case is troubling. However, the stipulated timeline, adopted by the military judge as a finding of fact, provides a factual explanation for much of the delay attributable to the Government. The timeline provides context and explanations which reflect reasonable pretrial decisions and activities including potential immunity for other actors, the unit’s pending deployment to Afghanistan, drug testing by USACIL, and “complicated” pretrial negotiations.
Slip op. at 14 (citation omitted). While Judge Erdmann and the majority are satisfied with the “context and explanations” (not to be confused with “excuses”) offered by the Government to explain its “improper,” “unusual,” and “unjustified” delays, it’s hard to forget the incredulity of Judge Stucky who, during the oral argument of this case, asked if the entire unit had “decamped” in preparation for its deployment, leaving not a man behind to oversee the prosecution of the confined Appellant as the months passed. And yet, Judge Stucky now joins the majority that excuses the “improper,” “unusual,” and “unjustified” delays, with Judge Ermann writing that “the delays identified by the military judge weigh against the Government, however, that weight is minimized when balanced against the Government’s explanations as to the overall time period.” Slip op. at 15.
Third, while Appellant did demand a speedy trial, and even litigated the question of denial of that right at the trial stage, Judge Erdmann and the majority actually fault Appellant for not complaining even earlier, noting that the speedy trial demand did not come until Appellant had been in pretrial confinement for 119 days. The majority “agree[s] with the military judge that the timing of Wilson’s demand for a speedy trial affords it only slight weight in his favor.” Slip op. at 15. This agreement is contextualized by a comment that “the demand for speedy trial did not occur until fourteen days after Wilson’s offer to plead guilty was denied.” Slip op. at 15. But this context only adds insult to injury, as the delay incurred during consideration of Appellant’s offer to plead was itself deemed “unusual and unjustified”:
The final period of delay identified by the military judge was November 10 to 30, 2010. This period commenced with the submission of Wilson’s Offer to Plead Guilty and terminated with the convening authority’s rejection of the offer. While the military judge noted that the unit’s chain of command was deployed during that period, the length of delay was “unusual and unjustified.”
Slip op. at 13. Appellant appears to blame for the Government’s delay.
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