Diaz v. The Judge Advocate General of the Navy, 59 M.J. 34

First Principles: Constitutional Matters: Due Process

1. petitioner has a constitutional right to a timely appellate review guaranteed him under the Due Process Clause

Military Justice Personnel: Defense Function: Appellate Counsel

1. an accused has the right to effective representation by counsel through the entire period of review following trial, including representation before the Court of Criminal Appeals and our Court by appellate counsel appointed under Article 70, UCMJ
2. Article 70(a), UCMJ, places the responsibility for detailing appellate counsel on the government; if an onerous caseload hinders the timely processing of appeals or infringes on the effective assistance of counsel, then it is the government, not an appellant, who bears the responsibility to take corrective action
3. the standards for representation of service members by military or civilian counsel in military appellate proceedings are identical; in addition, the duty of diligent representation owed by detailed military counsel to service members is no less than the duty of public defenders to indigent civilians

Miscellaneous Matters: Speedy Trial: Post-Trial

1. this Court has long recognized that an accused has the right to a timely review of his or her findings and sentence; that review spans a continuum of process from review by the convening authority under Article 60, UCMJ, to review by a Court of Criminal Appeals under Article 66, UCMJ, to review, in appropriate cases, by this Court under Article 67, UCMJ
2. petitioner’s right to a full and fair review of his findings and sentence under Article 66 embodies a concomitant right to have that review conducted in a timely fashion
3. appellate counsel caseloads are a result of management and administrative priorities and as such are subject to the administrative control of the government; to allow caseloads 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; to the contrary, the government has a statutory responsibility to establish a system of appellate review under Article 66 that preserves rather than diminishes the rights of convicted service members; in connection with that responsibility, the government has a statutory duty under Article 70 to provide petitioner with appellate defense counsel who is able to represent him in both a competent and timely manner before the Court of Criminal Appeals
4. courts have not hesitated to take action when public defender programs fail to represent their clients in a timely manner; the military appellate courts should be no less diligent in protecting the rights of convicted service members
5. unlike the civilian criminal justice system, the Courts of Criminal Appeals have unique fact finding authority, and that aspect of a service member’s case is not concluded until that review is completed; the nature of this review calls for, if anything, even greater diligence and timeliness than is found in the civilian system
6. the fact remains that through ten enlargements of time, petitioner’s first appellate defense counsel did not look at the substance of petitioner’s case and did not know when she would be able to do so; the appointment of a new appellate defense counsel did not rectify this problem, because that attorney concedes that he will not be able to look at the case in the foreseeable future; we reject any suggestion that institutional vigilance is evident in this case or that vigilance has been applied to ensure that petitioner receives the rights he is entitled to under Article 66 and Article 70
7. it is disingenuous for the government to argue that petitioner has not made a colorable claim of any possibility of relief, when the system that the government controls has to date deprived petitioner of the timely assistance of counsel that would enable him to perfect and refine the legal issues he has asserted
8. given that over 900 days have passed since sentencing and petitioner's appellate counsel have not even commenced an initial review of his record of trial, despite petitioner's desire that they do so, petitioner is not being afforded an appellate review of his findings and sentence that comports with the requirements of Article 66 and Article 70; these rights must be recognized, enforced, and protected by the government, by the appellate attorneys, by the Court of Criminal Appeals, and by this Court; the right to a timely appellate review in the military justice system is no less important and no less a protection than its counterpart in the civilian criminal justice system; petitioner's case illustrates that nothing has been done so far to respect or ensure his right to timely review of his findings and sentence