Accused sit in jail as military courts drag feet on appeals

PART 1

June 9, 2011
Accused sit in jail as military courts drag feet on appeals
By Michael Doyle | McClatchy Newspapers

WASHINGTON — 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 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.

Consider:

Navy Machinist's Mate Third 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.