A Right Way and a Wrong Way: Remedying Excessive Post-Trial Delay in Light of Tardif, Moreno, and Toohey

• Author: Major William J. Nelson
• Pages: 03

MILITARY LAW REVIEW

Volume 198 Winter 2008

A RIGHT WAY AND A WRONG WAY: REMEDYING EXCESSIVE POST-TRIAL DELAY IN LIGHT OF TARDIF, MORENO, AND TOOHEY

MAJOR WILLIAM J. NELSON*

1. Introduction

   Since the inception of the Uniform Code of Military Justice (UCMJ), military courts have struggled with the problem of excessive post-trial delay. Delays at every stage of the post-trial process, from transcribing the record and obtaining final action from the convening authority to getting a convicted servicemember's appeals decided by both tiers of the military appellate system, have plagued the military justice system. In response, the U.S. Court of Appeals for the Armed Forces (CAAF), and its predecessor in name, the U.S. Court of Military Appeals (COMA), have tried various approaches to address this problem over the years- some more aggressive and proactive and some more conservative.

   At the heart of this problem is the question of jurisdiction for the military courts. Specifically, Article 59(a) of the UCMJ prohibits CAAF or the lower service courts of criminal appeal from granting relief to a servicemember on the grounds of a legal error unless there has been "material prejudice to a substantial right."1 Historically, this prohibition has limited the ability of the courts to deter excessive post-trial delays because appellants cannot usually demonstrate that they were materially prejudiced by the delay. In 2001, however, CAAF decided the case of United States v. Tardif, in which it held that the service courts of criminal appeal could grant sentence relief for post-trial delay, even in the absence of prejudice, by virtue of their power to determine an appropriate sentence under Article 66(c), UCMJ.2 In 2006, CAAF decided the case of United States v. Moreno, which mandated a new methodology for review of post-trial delay cases.3 Using a balancing test it adopted from the Sixth Amendment speedy trial case of Barker v. Wingo, CAAF held that a finding of prejudice is not an absolute requirement, but merely one of four factors to be considered in determining whether to grant relief for a violation of due process.4

   Additionally, the court set forth benchmarks for various steps of the post-trial process, violations of which would trigger a presumption of unreasonableness. Shortly after the opinion in Moreno, CAAF decided United States v. Toohey, in which it found sentence relief warranted for unreasonable post-trial delay despite specifically finding that there was no prejudice stemming from the delay.5

   Unfortunately, CAAF's decisions in Tardif, Moreno, and Toohey run afoul of the jurisdictional limitation imposed on the military courts by Article 59(a). Unreasonable post-trial delay is unquestionably a legal error. As such, it cannot be remedied absent material prejudice to a substantial right. While either Congress or the President could reform the post-trial processing system, CAAF's limited jurisdiction precludes it from the type of judicial rulemaking in which it engaged in Moreno.

   Instead, this author proposes that the President reduce problems with the current system of post-trial processing through amendments to the Rules for Courts-Martial (RCM) and Department of Defense (DoD) regulations. Specifically, the President should amend the RCM to include a method for a convicted servicemember to address pre-action delay issues with the convening authority, as well as a provision that mandates a specific time limit for transmitting the record of trial from the convening authority to the service court of criminal appeals after action and that sets forth remedies for violations of that time limit. Additionally, the President should direct that current DoD regulations be amended to allow a convicted servicemember awaiting appeal to receive an interim DD Form 214 and to allow servicemembers in confinement to be eligible for clemency and parole consideration even before final action has been taken on their cases by the convening authority.6 These minor changes would help address some of the more easily correctible causes of post-trial delay, as well as take away the most frequent sources of harm to servicemembers awaiting appeal of their cases.

   Part II of this article will review the history of the military appellate process and the development of military case law dealing with the issue of post-trial delay and how the courts have chosen to address the problem given the statutory limitations on their jurisdiction. Part III will discuss why CAAF's attempt to give the service courts of criminal appeal authority to remedy excessive post-trial delay not resulting in prejudice was unlawful in light of the plain text of Articles 59(a) and 66(c), the legislative history thereof, and commonly-accepted rules of statutory interpretation. Part IV will discuss why CAAF's mandated methodology in Moreno is flawed and why CAAF's holdings in Moreno and Toohey, allowing itself to grant relief for post-trial delay without a specific showing of actual prejudice, violate the jurisdictional limitation of Article 59(a). Finally, Part V will lay out two proposed amendments to the RCM which will help expedite post-trial processing and two proposed regulatory changes which will limit harm caused to servicemembers awaiting appeal.

2. Historical Background

   1. History of Military Criminal Appeals

      It may seem counterintuitive, but nowhere does the U.S. Constitution guarantee the right to a criminal appeal. Appellate rights are purely a function of Congress and the various state legislatures granting these rights through specific legislation. In the first years of our nation's existence, the legislatures universally granted appellate rights to civilian convicts to ensure the propriety of the underlying convictions.7 The military was different, however. Military justice was always seen as a tool of the commander to maintain discipline in his ranks, and the extreme need for such discipline when fighting wars, combined with the isolation and mobility of armies in the field, made it necessary for justice to be dispensed with more quickly and efficiently. As John Adams wrote in 1777, "There can be no liberty in a commonwealth where the laws are not revered and most sacredly observed, nor can there be happiness or safety in an army for a single hour when discipline is not observed."8

      Thus, even before the declaration of our nation's independence, the Continental Congress passed Articles of War which authorized George Washington to convene courts-martial with minimum process, and with sentences that could be carried out immediately upon Washington's approval of the court-martial's findings.9

      When our Constitution was created, the idea of having a separate military justice system was preserved. Article I, Section 8 of the Constitution provides that "[t]he Congress shall have the power . . . [t]o make rules for the government and regulation of the land and naval forces;" for the next one hundred and fifty years, very little was changed from the original Articles of War passed by Congress in 1775 and 1776.10 With the exception of cases involving general officers, the dismissal of any commissioned officer, or sentences of death in time of peace, commanders still had non-reviewable authority to approve and execute courts-martial sentences.11 In 1917, a number of black soldiers rioted in Houston, Texas, after being taunted by white civilians, resulting in significant property damages and a number of deaths.12 Fully complying with the existing Articles of War, the commanding general immediately convened courts-martial for all of the black soldiers- thirteen of whom were given the death penalty and hanged the day after the courts-martial.13 Given the swiftness of the executions in this controversial case, the War Department issued a directive that in the future, no executions could be carried out until the case was reviewed by the Office of The Judge Advocate General to ensure that the court-martial was conducted legally, and shortly thereafter, Congress created Boards of Review, composed of lower-ranking Judge Advocates, who were to review cases and give nonbinding recommendations regarding the legal sufficiency thereof.14

      By World War II, military justice was still viewed as being harsh and inconsistent, with the unfettered discretion of commanders to influence and approve courts-martial leading to sometimes outrageous results. Perhaps the most notorious case in this regard was that of Private (PVT) Eddie Slovik. While tens of thousands of servicemembers deserted during World War II, many of whom received only light punishment and a discharge, PVT Slovik was the only one executed for his offense.15

      The circumstances of PVT Slovik's offense were no worse than those in a typical desertion case, but General Eisenhower chose to approve the execution as a deterrent for all of the thousands of other servicemembers who were deserting.16 Cases such as this contributed to a basic mistrust of the military justice system by the millions of servicemembers who were drafted during the war. After the war, there was a strong movement for change.

      Congress immediately took up the call to lessen the perceived unjust and arbitrary nature of military justice and amended the Articles of War in 1948 to create, above the Boards of Review, judicial councils composed of three general officer Judge Advocates which would have the authority to review cases for legal sufficiency and to make recommendations as to the fairness of the sentence.17 Like the lower Boards of Review, the recommendations of the legal council were nonbinding and could be overridden by the Secretary of the Army. Under the amended articles, The Judge Advocate General, the Secretary of the Army, and the President all had the power to mitigate or remit portions of sentences.18 Despite this rapid change, there was still a strong sentiment that more needed to be done to improve and standardize military justice across...