CAAF has released an opinion in United States v. Bush, __ M.J. ___ (C.A.A.F. 2009). That means, according to CAAFLog, two more to go before of all of the current pending decisions have been released. Judge Erdmann writes the opinion; Judge Ryan writes a “concur in the judgment” opinion which Judge Stuckey is in agreement with.
This is a post-trial speedy review case. The NMCCA decision was affirmed which denied relief. Appellant had submitted a general claim of prejudice without any supporting documents. The court also decided that the NMCCA erred in placing the burden on appellant to produce evidence of prejudice, but the error of burden shifting was harmless beyond reasonable doubt. The court specifically avoided creating a presumption of prejudice for future cases.
In her concurring opinion Judge Ryan said she wants to revisit the post-trial delay jurisprudence, and reject any decision-making based on a public perception of injustice theory. She is open to the possibility of relief where there is actual prejudice.
This case has value for trial defense counsel for cases where there is long term delay in several areas: getting an authenticated record of trial, getting an SJAR, and getting a CA decision. Bush was tried in 2000, it took six years for his case to first get to NMCCA. During this time he, and future clients, was trying to get work and was apparently refused because he had no DD214. One wonders if he contacted his trial defense counsel or anyone during this time.
1. After trial explain – again – the post-trial process.
2. Explain the process in terms of the timing of the various procedures.
3. I usually tell clients to start complaining about post-trial delay after 120 days. (Remember some will be happy for the delay because of the medical benefits while on appellate leave.)
4. I’ve commented on post-trial delay actions a trial defense counsel might take: a post-trial motion with the MJ before authentication, an extraordinary writ for release pending appeal.
5. I will be adding more counseling and information on what to do if the person has problems getting employment or other issues affected by the extended appellate leave. For me the bottom line of Bush is that the appellant needs to have independent proof/corroboration about problems finding work while on appellate leave. The court references a prior case where the appellant produced three affidavits of employers who said they’d have hired that person if they’d had a DD214.