Pace of justice at Air Force appeals court comes under scrutiny

05/02/2013 5:49 AM

05/02/2013 5:49 AM

The nation’s top military appellate judges will scrutinize a seemingly sluggish Air Force court that’s vexed airmen from Alaska to Florida and beyond .

In a highly anticipated move, the U.S. Court of Appeals for the Armed Forces has agreed to hear the case of a former master sergeant who waited nearly three years for the Air Force to resolve his appeal of a court-martial conviction. The delay exceeded the 18 months that judges consider reasonable for appellate decisions.

“I think it’s extremely important,” Georgia-based attorney William Cassara said an interview Wednesday. “This gives the appeals court a chance to tell the Air Force court that ‘You need to police up your shop.’ ”

Cassara represents Timothy L. Merritt Sr., a former master sergeant convicted in Germany in September 2009 on child pornography charges. Merritt’s appeal was put on the docket of the U.S. Air Force Court of Criminal Appeals in February 2010. In December 2012, the Air Force court rejected the appeal. While acknowledging the delay was “unreasonable,” the Air Force judges also deemed it “harmless.”

Under a 2006 court ruling, any military appellate delay longer than 18 months is considered unreasonable. It’s then up to the lower military appellate court to decide whether to provide some legal relief, such as a reduction in prison term.

At least 52 fully briefed cases have been stuck on the Air Force Court of Criminal Appeals’ docket for longer than 18 months, court records show. The court’s track record doesn’t promise relief anytime soon.

An Alaska-based airman convicted on an obscenity charge at Elmendorf Air Force Base in August 2009, for instance, had his appeal resolved in April, a week ago. An enlisted woman convicted of pot possession and larceny charges at Goodfellow Air Force Base in Texas in October 2009 and an airman convicted on drug and forgery charges at Florida’s MacDill Air Force Base in August 2010 likewise had their appeals decided last month.

Each airman called the appellate delay unreasonable. Each complained about it. None succeeded.

“While these events are unfortunate, they do not show bad faith or gross indifference to the processing” of the case, the Air Force appellate court concluded in the April 18 decision involving the former Goodfellow enlisted woman, Jacinta-Marie R. Tompkins.

In rejecting Tompkins’ appeal, the Air Force court further acknowledged that “post-trial processing . . . has been less than exemplary,” but also cited many reasons why. Tompkins’ own attorneys took a year to file their appellate brief. An email foul-up contributed to the delay, as did difficulty in serving legal papers.

An Air Force spokesman couldn’t be reached to comment Wednesday, but officials have stressed previously that the service is working hard to expedite the appellate process, and that some delays are due to defense actions.

“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,” Air Force Maj. Joel T. Harper told McClatchy last year.

Based at Joint Base Andrews, outside Washington, the Air Force appellate court reviewed 261 cases in fiscal 2012, a 20 percent increase from 2011. The court also added an additional member, growing to six judges, and has undergone other changes as well.

“The court experienced substantial personnel turnover, to include a new chief judge, two new associate judges and a new paralegal after the departure of personnel previously assigned in those positions,” the Air Force judge advocate general noted in a 2012 annual report.

Every week can be busy. In April, the appellate judges issued 42 decisions and orders, much more than the Army Court of Criminal Appeals.

On the other hand, the Navy-Marine Corps Court of Criminal Appeals was nearly as busy in April, issuing 39 decisions, but it no longer faces the same complaints about persistent delays. Lawyers note an improvement since the days when a Marine Corps gunnery sergeant waited nine years for his appeal to be resolved; his sexual assault case eventually was dismissed, and the Marine was returned to active duty.

Merritt has already served his time, though he lives under the shadow of a bad conduct discharge.

Merritt was based at Spangdahlem Air Base in Germany in 2006, when German investigators suspected him of viewing child pornography. The trial took place several years later. Found guilty, Merritt appealed on grounds that included judicial bias. The appellate court rejected his arguments in its December 2012 decision, adding that under the “totality of the circumstances” the appellate delay was “harmless beyond a reasonable doubt.”

Some of the delay, Cassara acknowledged, resulted from the long time it took for Merritt’s attorneys to file their brief.

A date hasn’t yet been set for the U.S. Court of Appeals for the Armed Forces to hear the case.

“The court has an opportunity to send a message that this kind of delay will not be tolerated,” Cassara said.

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