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Accused Sit in Jail as Military Courts Drag Feet on Appeals

U.S. Court of Appeals for the Armed Forces. (Photo: Matthew G. Bisanz / Wikimedia)

Marine Corps Gunnery Sgt. Brian W. Foster served nearly a decade in Leavenworth for a crime he didn't commit.

Foster is now free and serving his country once more. The military appeals system that failed him, meanwhile, is still trying to right itself.

“It's a terrible system,” Foster said. “The judges and attorneys who had the opportunity to stand up and say 'this isn't right,' they didn't do that.”

The court that finally freed Foster in 2009 called him a victim of “judicial negligence” and “intolerable” errors. The nine-year delay between conviction and appeal was “unacceptable,” the U.S. Navy-Marine Corps Court of Criminal Appeals acknowledged.

While Foster's experiences were extreme, they were not entirely unique. Other soldiers, sailors, airmen and Marines have likewise languished in appellate limbo.

A McClatchy Newspapers review of thousands of pages of court and military documents reveals persistent delays that have long frustrated repeated reform efforts. These appellate delays can interfere with the ability of veterans to find jobs, secure benefits and, sometimes, regain their freedom.

The delays happen at every stage. Records can get lost. Simple tasks, like trial transcriptions, can lag. Attorneys get distracted or are sent off to a war zone. Some judges have been indifferent or out of their depth.

“Serious post-trial processing problems persisted for at least the last two decades,” the Defense Department Office of Inspector General noted last December, citing “consistent failures in leadership, supervision and oversight at all organizational levels.”

And when the seemingly inevitable post-trial delays do recur, a McClatchy review shows, there's no guarantee judges will do anything about it.

But the McClatchy review also finds that the long-troubled military appeals system shows signs of getting better. Court backlogs are shrinking. New software tracks cases more efficiently. Supervision has improved. The Navy, which with the Marine Corps handles a majority of all courts-martial, has a new judicial oversight council and chief judge.

“The Department of the Navy is very confident that a situation like that involving Marine Corps Sgt. Brian Foster will never be repeated,” said a spokesperson for the Navy's judge advocate general, providing written responses to questions on condition of anonymity as a matter of policy.

The Navy spokesperson added that “the post-trial processing mission has improved both at the local level … and at the appellate level.” The average time between trial and appeal decision, for instance, has been cut in half since 2004.

Nonetheless, constant vigilance will now be needed, partly because military justice can seem so foreign to the civilian world. Backsliding would be easy since budgets are tight, attorneys are stretched thin and the memory of courtroom catastrophes, like Brian Foster's, fade over time.

In theory, post-trial delays can spur judges to offer relief, which can range from lower sentences to upgrades of dishonorable or bad conduct discharges to something less serious. In practice, this rarely happens.

“What merits relief and what doesn't, doesn't always make sense to me,” said Michelle McCluer, the executive director of the National Institute of Military Justice.


Navy Machinist's Mate 3rd Class Jacob N. Lavoy was convicted of smuggling immigrants in March 2006. It took 1,601 days for his appeal to reach the appellate court docket. Judges called the delay unreasonable. It didn't matter. In March, he was denied relief, which can be a reduced sentence or other compensation to make up for the delay.

Marine Lance Cpl. Robin A. Stagner was convicted of aggravated assault in July 2006. It took 1,459 days for his paperwork to reach the appellate court docket. Judges called the delay unreasonable. It didn't matter. In February, he was denied relief.

Marine Corps Cpl. Marshall L. Magincalda Jr., of Manteca, Calif., was convicted of conspiracy to murder an Iraqi civilian in August 2007. He was acquitted of murder. It took 857 days for superior officers to complete a formal review. Judges called the delay unreasonable. It didn't matter. Last August, he was denied relief.

“He's a little upset over things, which is understandable,” said Magincalda's mother, Wendy Magincalda, of Fair Oaks, Calif.

Like clockwork, such post-trial delays have periodically infuriated the nation's highest military appeals court, now called the U.S. Court of Appeals for the Armed Forces.

In 1997, the court said “we continue to be troubled” by post-trial delays. Three years later, the court insisted “this attitude has to change.” Three years later, judges declared “we reject any suggestion that continued delay … should be tolerated.” Three years later, noting that delays had become “the norm,” the court spoke emphatically.

“Unreasonable delays that adversely impact an appellant's due process rights will no longer be tolerated,” the court stated in May 2006.

The last straw came that month in a case involving rape allegations against Marine Corps Cpl. Javier A. Moreno Jr. Moreno waited four years, seven months and 14 days for the U.S. Navy-Marine Corps Court of Criminal Appeals to decide his appeal.

“He served years in prison before getting a chance to challenge his conviction,” Moreno's attorney, Navy Lt. Cmdr. Brian L. Mizer said. “It was a pretty glaring error.”

During the long delay, Mizer said, Navy investigators destroyed the evidence used against Moreno and thereby undermined his defense in the November 2007 retrial. The second trial also ended in a conviction, meaning Moreno must still register as a sex offender.

“It wasn't fair,” Mizer said.

Still, the Moreno decision put the military appellate system on notice.

Deadlines were serious. The supervising officer, who is technically called the convening authority, has 120 days after the trial to approve the verdict and sentence. The initial appellate courts would finish their decisions within 18 months of getting an appeal.

If the government slacked off, defendants would get relief. The pivotal question, though, isn't simply whether there's an unreasonable delay, but whether judges think a delay merits action. Usually, judges don't.

A McClatchy review of U.S. Court of Appeals for the Armed Forces cases decided since Moreno's identified at least 24 dealing with excessive post-trial delay. In 19 cases, judges denied relief even for unreasonable delay.

A McClatchy review of lower-level appellate courts serving the Army, Navy, Air Force and Coast Guard identified at least 45 decisions dealing with post-trial appellate delays since May 2006. These cases didn't receive a full review by the higher court.

In 34 of the 45 cases, the lower-level appellate courts said the defendants would receive no relief even for unreasonable delay. The military considers this a sign of success, as relatively few delays are deemed so outrageous that they require relief.

Skeptics fear it's evidence that foot-dragging is still countenanced.

“Post-trial delays have certainly gotten a lot more high-level attention, but it doesn't seem as if we have gotten rid of all the issues,” noted McCluer, of the National Institute of Military Justice.

Senior Airman Alfredo Preciado, for instance, was convicted of indecent acts in September 2004. At one point, prosecutors took 793 days to return the case to the U.S. Air Force Court of Criminal Appeals.

The delay was “definitely outrageous and cannot be tolerated,” the Air Force appellate court concluded in 2008.

Nonetheless, judges tolerated it. Citing his crime, among other reasons, they denied Preciado relief.

Manpower shortages contribute to delays. An independent review committee concluded in 2010 that the Navy needed 950 active-duty judge advocates. There are currently about 811, posing what the committee called an “unacceptable legal risk.”

Moreover, judges have sometimes faltered.

Appointment to the U.S. Navy-Marine Corps Court of Criminal Appeals was “not viewed as an appointment based on expertise in military justice, litigation expertise, and judicial temperament,” the Navy noted in a 2009 assessment. Instead, the Washington-based court sometimes became a pre-retirement transition or a lifestyle choice.

“This detailing process did not produce a bench of highly qualified judges,” the Navy's 2009 study noted.

There have since been improvements, with the Navy spokesperson enumerating the “highly qualified senior officers” now serving as judges.

“Many significant improvements have been instituted,” the Defense Department's inspector general office acknowledged, while warning that “issues remain that could preclude enduring reform.”

It helps that fewer courts-martial are taking place, decongesting the appeals pipeline. In fiscal 2002, the military conducted 8,100 courts-martial. By 2009, this fell to 5,841.

But for all the improvements, the Brian Foster debacle reminds everyone of what can go wrong.

Everything moved slowly after Foster's 1999 conviction for spousal rape. It took a year for Foster's commanding officer to sign off on the court-martial. Another 291 days passed before authorities placed Foster's appeal on the docket. The case bounced from judge to judge. Attorneys kept asking for time extensions.

Foster's appeal languished until he was finally exonerated in 2009. The Pentagon, stung by the judicial negligence, then undertook the studies and reforms whose consequences are still unfolding.

“Change sometimes comes about from something like this,” Foster said. “All this might bring about a change that helps the military.”

© 2011 McClatchy-Tribune Information Services

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