United States v. Clevidence

14 M.J. 17, 1982 CMA LEXIS 16181

• Court: United States Court of Military Appeals
• Decided: August 30, 1982
• Docket: No. 41252/CG; CGCMS 23510
• Status: Published

Opinions

Opinion of the Court

EVERETT, Chief Judge:

This case involves the evil of inordinate, unexplained delay in the post-trial review that was condemned by our Court in Dunlap v. Convening Authority, 23 U.S.C.M.A. 135, 48 C.M.R. 751 (1974).

On April 13, 1979, a special court-martial convicted appellant of two specifications of failing to repair, one specification of disrespect to a superior commissioned officer, and four specifications of failure to obey lawful orders, in violation of Articles 86, 89, and 92, Uniform Code of Military Justice, 10 U.S.C. §§ 886, 889, and 892, respectively. He was sentenced to a bad-conduct discharge, confinement at hard labor and forfeiture of $279.00 pay per month for 3 months.

The record of trial was not authenticated by the military judge until October 30,1979 —a delay of 200 days which, according to the brief of appellate government counsel, was “due to numerous discrepancies and mistakes found in the record of trial by the military judge.” The convening authority approved the sentence on December 18, 1979; the post-trial review was dated February 5, 1980; and the supervisory authority gave his approval on February 20,1980— some 313 days after the sentence had been adjudged.

Upon its review of the case, the United States Coast Guard Court of Military Review commented that

[t]his record presents another deplorable example of official indifference toward the timely posttrial review of Coast Guard courts-martial which has formerly been condemned by the Chief Counsel and by this Court. See 414 Law Bulletin 5 (June 1976); U. S. v. Player, 2 M.J. 1115 (C.G.C.M.R.1975); U. S. v. Owens, 2 M.J. 1286 (C.G.C.M.R.1976).

United States v. Clevidence, 11 M.J. 661, 666 (C.G.C.M.R.1981). The court added that a statement by the trial counsel concerning

the 261 [sic] days delay from sentencing until authentication of the record ... neither explains nor excuses the delay.[¹] Indeed it would support the conclusion that the personnel engaged in the preparation and authentication of the record were grossly derelict in the performance of their duties or were grossly inept or both.

Id. at 666. After emphasizing that “delay in this case then is both inordinate and unexplained,” the court below observed that in Dunlap our Court had

adopted the rule that when an accused was continuously under restraint after trial and the convening authority did not promulgate his formal and final action within 90 days of the commencement of such restraint after completion of trial a presumption of a denial of speedy disposition of the case would arise.

As the court also noted, our Court “abandoned” this rule in United States v. Banks, 7 M.J. 92 (C.M.A.1979), “and returned to the former rule that ‘applications for relief because of delay of final action by the convening authority will be tested for prejudice.’ ” 11 M.J. at 667.

Appellant was not confined for 90 days after trial and, at his own request, had been placed on appellate leave upon being released from confinement. Accordingly, the Court of Military Review decided that he had not made an adequate “showing of prejudice which would justify dismissal of charges”; but, in accord with its own precedents,² the court relieved Clevidence of the forfeitures by approving only so much of the sentence as provided for confinement at hard labor for 3 months and a bad-conduct discharge.

The only issue now is whether additional relief is required. In that connection, we note that appellant’s trial occurred before our decision in United States v. Banks, supra. Thus, under United States v. Johnson, 10 M.J. 213 (C.M.A.1981), Dunlap would have still been applicable and, if Clevidence had served the entire 90 days’ confinement to which he was sentenced — instead of being released after 77 days by reason of the good-conduct time he had earned — he would be entitled to the presumption of prejudice established by Dunlap. While the 77 days of confinement will not suffice to create a presumption of prejudice, the circumstance that appellant was in confinement for this period after trial before the record had even been authenticated should be considered in determining whether prejudice existed or whether, in the exercise of our supervisory jurisdiction, we should grant further relief. In this connection, we reiterate the observation that³

the demise of the Dunlap presumption may produce a return to the intolerable delays that persuaded the Court to adopt the presumption in the first place. Indeed, to help prevent such an occurrence, the court should be vigilant in finding prejudice wherever lengthy post-trial delay in review by a convening authority is involved. Moreover, if the problem of post-trial delay occurs frequently in the future, the Court will have to consider resurrecting the Dunlap presumption of prejudice.

Clevidence claims that he has been hindered in finding adequate employment because potential employers are concerned that he may be recalled to active duty. To some extent, appellant could have avoided this situation by not requesting appellate leave.⁴ However, we do not think that he is estopped from arguing that he has been prejudiced by his difficulties in getting steady employment.

We are reluctant to dismiss charges because of errors on the Government’s part and we would especially hesitate to do so if the case involved more serious offenses.⁵ However, it seems clear that unless we register our emphatic disapproval of such “inordinate and unexplained” delay in a case like this, we may be faced in the near future with a situation that would induce a return to the draconian rule of Dunlap.

Because unreasonable post-trial delay seems to be a recurring problem in the Coast Guard, see, e.g., United States v. Quarles, 11 M.J. 625 (C.G.C.M.R.1981) (252 days); United States v. Owens, 2 M.J. 1286 (C.G.C.M.R.1976) (378 days); United States v. Player, 2 M.J. 1115 (C.G.C.M.R.1975) (413 days); United States v. Ward, 48 C.M.R. 588 (C.G.C.M.R.1974) (774 days), we inquired extensively during oral argument about the reasons for such delays. Apparently, part of the problem arose from inaccuracy of court reporting and in the present case about 75 per cent of the record of trial had to be retyped. Even so, since the record totals 152 pages and the delay in authentication was 200 days, the pace was extraordinarily slow.

We were informed by counsel that in some administrative hearings the Coast Guard contracts for reporting services. When, as in this case, a court-martial convenes within the United States, use of contract court-reporting services may be a suitable means to avoid delay. Perhaps, in view of the relatively small number of cases tried by the Coast Guard which require verbatim records, that Service can make arrangements with the other uniformed Services for loan of court reporters. In any event, we are convinced that, with reasonable effort, a solution can be found to the problem. Hopefully, our opinion in this case will help induce that effort.

Since it appears that under the circumstances of this case, the delay in post-trial review was prejudicial to Clevidence and since we are sure that, in the exercise of our supervisory authority over military justice, we must halt the erosion in prompt post-trial review of courts-martial, we reverse the decision of the United States Coast Guard of Military Review, set aside the findings and sentence, and dismiss the charges against appellant.

Judge FLETCHER concurs.

1 . The trial counsel’s statement was:

The record of trial for Seaman Recruit CLEV-IDENCE was 152 pages in length. After the original record of trial was submitted for authentication to the Military Judge and returned for corrections, three individuals made separate reviews of the record of trial for possible errors of spelling, punctuation, and sentence composition to ensure its accuracy. Pages 35 through 152 were then retyped. This was done to ensure that an accurate record of trial, one without numerous pen and ink corrections, was available for the review process. The Government’s position is the delay of the preparation of the record of trial was not unreasonable considering the length of the verbatim transcript, and that the defendant was not prejudiced by this delay, as his leave without pay status was made by voluntary request.

2 . United States v. Owens, 2 M.J. 1286 (C.G.C. M.R.1976); United States v. Player, 2 M.J. 1115 (C.G.C.M.R.1975). Cf. United States v. Ward, 48 C.M.R. 588 (C.G.C.M.R.1974).

3 . 10 M.J. 213, 218 (Everett, C. J., concurring in the result).

4 . Under the law then in effect, involuntary appellate leave was not authorized. See The Military Justice Amendments of 1981, Public Law No. 97-81, 97th Cong., 1st Sess., § 2(b)(1) (authorizing involuntary appellate leave). According to appellate defense counsel, Clevidence claims that he was coerced into requesting appellate leave.

5 . If the Government considers the charges against appellant to be serious, its inattention to his case is even more puzzling.