Air Force slow to handle appeals for convicted airmen, officers

McClatchy NewspapersSeptember 21, 2012 

Timothy L. Merritt is waiting for final justice from the Air Force he once served.

The former master sergeant is only one of dozens of convicted airmen and officers remain who are stuck in legal limbo, as the seemingly overwhelmed Air Force Court of Criminal Appeals struggles with mixed success to manage its caseload. Frustration is boiling over, and senior judges are taking critical notice, as more decisions get delayed beyond the point officially considered unreasonable.

“Sitting in jail while you’re waiting for the Air Force to decide your case is pretty egregious,” Georgia-based lawyer William Cassara said Friday, adding that even appellants already released from prison “are waiting to get on with their lives.”

Cassara represents Merritt, who was court-martialed in Germany and whose case has languished before the Air Force appellate court for more than 30 months. That’s far too long, by the military’s own reckoning.

Any delay longer than 18 months between when an appeal is put on the court’s docket and when it’s decided is “presumptively unreasonable,” the U.S. Court of Appeals for the Armed Forces has said. Long appellate delays can be seen as violating the constitutional guarantees of due process and speedy trials. The court set the 18-month standard in a 2006 case that involved a Marine, Javier Moreno, who’d waited four years and seven months for his appeal to be decided. The Navy-Marine Corps Court of Criminal Appeals, which had let Moreno and others like him languish, has since sped up its work significantly.

But at the Air Force Court of Criminal Appeals, at least 83 pending and fully briefed cases have been waiting longer than 18 months for decisions.

“The court of appeals sent the message,” Cassara said, “but the Air Force court didn’t get the memo, apparently.”

In a rare step, the Court of Appeals for the Armed Forces has given the Air Force appellate court until next Friday to explain why it shouldn’t be ordered to resolve Merritt’s long-delayed appeal decision expeditiously. Merritt, an 18-year veteran of the service who was convicted in 2009 of receiving child pornography, already has served his prison sentence.

Others hope for similar assistance.

Patrick Carter, for instance, is a onetime master sergeant formerly based at Scott Air Force Base in Illinois who’s been waiting more than 24 months for an appellate decision. Corey Payton, a former enlisted man who was convicted of adultery and other charges while serving in Italy, has been waiting about 20 months.

Still others may have gotten their decisions, but well past the 18-month deadline.

Alexander Schodolski Carey, a former airman at Beale Air Force Base in California’s Sacramento Valley, waited 26 months before he got his appellate decision last May. Michael J. Blume, a former captain based at California’s Travis Air Force Base, waited 37 months before he got an appellate decision last March.

All told, defense attorneys have counted, the Air Force court took longer than 18 months on 39 percent of the appeal decisions issued from June 1, 2011, to Aug. 31 of this year.

“This is a serious problem, especially for those who plead not guilty and who may have a chance at a new trial or release from confinement,” defense attorney Philip Cave, who represents some former Air Force personnel, said Friday. He said that with new cases being filed, “the potential problem can get worse over time if this is allowed to continue.”

An Air Force spokesman, Maj. Joel T. Harper, said Friday afternoon that the Air Force trained all judge advocates on the importance of avoiding unnecessary delays.

“The timely and fair administration of military justice is a priority for the Air Force and is an important element of excellence in military justice,” Harper said. “While there are many factors that impact the speed at which a case moves through the appellate process, both the accused and the Air Force have an interest in a timely resolution.” He added that “there are often multiple causes for appellate delay,” including requests from the defense.

Located at Joint Base Andrews, outside Washington, the five-member Air Force court handled 214 cases in fiscal year 2011. The court also experienced “substantial personnel turnover” last year, according to the most recent report of the Air Force judge advocate general.

In recent cases in which the court has acknowledged missing the 18-month deadline for action, the judges invariably have concluded that the delay was harmless.

Last April, for instance, the court upheld the court-martial conviction of Air Force enlisted man Justin C. Behrens, who’d accidentally shot a fellow airman and then lied about the circumstances while serving in Iraq. The court acknowledged that the 23 months it took to reach its decision was “unreasonable” on its face but concluded that the delay didn’t hurt Behrens.

“Having considered the totality of the circumstances and the entire record, we conclude that any denial of (Behrens’) right to speedy post-trial review and appeal was harmless beyond a reasonable doubt,” the court said.

Email: mdoyle@mcclatchydc.com; Twitter: @MichaelDoyle10

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