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Washington-The U.S. Court of Appeals for the Armed Forces in two recent opinions has sharply criticized Navy-Marine Corps appellate lawyers for what it called a “serious pattern of delay” in the handling of criminal appeals. The court’s frustration with a problem that it has viewed as long-standing erupted last month in one case in which a Navy firecontrolman chief, convicted of, and sentenced for, rape and indecent acts in 2000, was still waiting in August for review of his conviction by the Navy-Marine Corps Court of Criminal Appeals. In the second case, the delay was before the U.S. court of appeals itself, where appellate defense lawyers sought three extensions of time for filing a brief on behalf of a Navy seaman apprentice convicted of arson. In both cases, appellate defense lawyers claimed that heavy caseloads or administrative problems prevented them from either reading the trial record, as in the case of Chief Salvador Diaz, whose attorneys sought 11 time extensions, or filing a brief to support a petition for review, as in the case of Seaman Leahatonia Brunson. Diaz v. Judge Advocate General of the Navy, No. 03-8014; U.S. v. Brunson, No. 03-0297. “The special difficulty here is that in addition to the normal and common concern about speedy justice that we all have, the military justice system exists on a level separate from the civil justice system and its separate existence is rationalized by the need for promptness,” said Eugene Fidell of Washington’s Feldesman Tucker Leifer Fidell and president of the National Institute of Military Justice. “If anything, it has higher expectations of moving cases through,” he added. “But the military appellate system has been plagued by delay. And the court, for years, has been very frustrated by this.” The problem of delay is a “serious one,” agreed Senior Judge Walter T. Cox III of the armed forces court. Sailors and marines whose cases are pending, he explained, are in a kind of limbo. “The vast majority of them are not being held in some brig or jail,” he said. “But the problem often is they don’t know whether their discharge has been approved or whether it’s honorable, so their status is in limbo.” Justice delayed The U.S. Court of Appeals for the Armed Forces (CAAF) has appellate jurisdiction over members of the armed forces on active duty and other persons subject to the Uniform Code of Military Justice. Its decisions are subject to direct review by the U.S. Supreme Court. In the Diaz decision, where delay was in the lower reviewing court-the Navy-Marine Corps Court of Criminal Appeals-the CAAF detailed Diaz’s trip through the justice system, placing the number of days spent in each stage within parentheses. It began at (day zero) with Diaz’s sentencing and ended with (day 927) when it ordered the government-judge advocate general of the Navy-to show cause as to why it should not grant Diaz’s request for extraordinary relief. Diaz’s first appellate defense counsel had filed 10 requests for time extensions with the lower reviewing court. After that court rejected a pro se petition for habeas corpus filed by Diaz himself, he turned to the CAAF. Diaz told the court that his first appellate lawyer’s 10th request for more time cited as the reason her “caseload commitments,” which included 66 cases, totaling more than 16,000 pages of trial transcript and 11 cases in which delays had been sought 13 times or more. Diaz’s case is now in the hands of a new counsel who told the court there is “little hope” of Diaz’s case being exhaustively read and its issues briefed “anytime soon” given his current workload. He added there are 1,463 cases pending initial review and filing by Navy-Marine Corps appellate defense counsel. The average caseload per attorney in the division is “70 cases comprising an average total of 18,100 pages of trial transcript.” In response, the government claimed the delay was neither inordinate nor excessive because of the size of the trial record, the seriousness of the charges, the number of issues identified by Diaz and the high volume of cases submitted to the lower reviewing court. The military justice system requires mandatory review of a vast number of court-martial cases, added the government, and that it is reasonable and not a due process violation if that review takes longer than it would in the civilian criminal justice system. The government also told the court it should not compare the length of time it takes for a military appellate counsel to perfect an appeal with the time it takes a civilian lawyer hired by a serviceman or a public defender who represents only indigent clients. The CAAF found the government’s arguments “not persuasive.” The government has a “statutory duty” to provide appellate defense counsel who can represent a defendant “in both a competent and timely manner” before the criminal appeals court, the CAAF said in a per curiam opinion. Caseloads, the court explained, are subject to the administrative control of the government. “To allow case loads to become a factor in determining whether appellate delay is excessive would allow administrative factors to trump the Article 66 and due process rights of appellants,” the court said. The CAAF sent the Diaz case back to the Court of Criminal Appeals with directions that it expedite action in that case and report in 60 days on what it has done in that case and all other cases pending review before it. In the Brunson case, where a third request for delay was made to the CAAF, the court’s clerk reviewed the docket and reported that, as of Aug. 1, the CAAF’s petition docket had 43 cases on appeal from the Court of Criminal Appeals in which no timely “supplements” (briefs) had been filed. Motions to file out of time were submitted from six to 26 days after due dates set by the court’s rules. Appellate counsel for Brunson and other defendants cited administrative problems within the defense division for their delays-a reason rejected by the CAAF. The court also noted that a number of motions filed recently by the Navy-Marine Corps Appellate Defense Division failed to comply with standards announced by the court. It warned the lawyers that it would consider sanctions if they continued to disregard the court’s rules. Because it did not want to make the appellants suffer for their lawyers’ omissions, the court said, it granted time extensions in all 43 cases. The problems revealed in Diaz and Brunson are institutional, said Senior Judge Cox. “Over the past 25 years, I’ve seen times when the Navy-Marine Corps did not have adequate resources to meet the challenge of the number of cases coming in.” In an amicus brief supporting Diaz, the National Institute of Military Justice attached a recent ethics opinion by the American Council of Chief (Public) Defenders. The opinion said a chief public defender is ethically prohibited from accepting a number of cases that exceeds the capacity of the agency’s attorneys to provide competent representation in every case. National caseload standards adopted by the American Bar Association and the National Legal Aid and Defenders Association say that public defenders should handle no more than 25 appeals per attorney, in contrast to the reported 70 in the Navy-Marine Corps division. Work and turnover The division, in a 2002 annual report to the CAAF, had 14 active-duty judge advocate generals. It also relied heavily on 40 reserve JAGs. The division-whose chief did not respond to a request for an interview-began that fiscal year with a backlog of 1,300 cases (no initial pleadings filed). The division filed 290 petitions in the CAAF in 2002-double the number in 2001. The largest number of petitions came from the Air Force-381; the Army filed 258; and the Coast Guard, five. The division’s attorneys carry about double the number of cases assigned attorneys in the Air Force Appellate Defense Division, which has 12 active-duty attorneys. “We have about 30 cases assigned per attorney,” said Col. Beverly Knott, division head. Cases are assigned based on the number of pages in the trial records. “The highest number of cases assigned might be 40-45 but they have smaller number of pages of records of trial. So far that approach has kept us pretty balanced. Each attorney feels like there is equity.” Her division also has fewer cases coming to it than the Navy-Marine Corps division, which is the larger branch. Her attorneys do request delays, she said, they have “routinely gotten somewhere close to 70 percent of our cases [into court] within six months.” Knott added that her staffing level is “good” now but her division and other appellate defense divisions share a problem that does affect their productivity-turnover in staff. “We go through it every summer cycle,” she explained. “We lost four attorneys and got four new ones at the end of summer . . . .We are fully manned and once we’re up to speed, I’m cautiously optimistic we are going to be able to whittle away our delays even more.” Although the Diaz and Brunson opinions were aimed at the Navy-Marine Corps, all appellate divisions took notice of it, she said. “That was pretty strong language,” said Knott. Although the Air Force division has not been subject to court criticism to Knott’s knowledge, there have been similar delay problems in the other branches over the years, Cox said. Coyle’s e-mail address is [email protected].

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