2007
(a
CCA’s due process review of a claim
of
unreasonable delay involves a four-factor analysis in which at least
two of the
factors concern the personal post-trial circumstances of the
servicemember –
i.e., reasons for asserting or not asserting the right to timely
review, and
prejudice; in such cases, the servicemember may well be the best source
of
information on these factors).
2006
United
States v. Moreno, 63 M.J. 129 (due process
entitles convicted servicemembers
to a timely review and appeal of court-martial convictions).
2005
United
States v. Jones, 61
M.J. 80 (an appellant’s constitutional due process right to a speedy
post-trial
review is a right separate and distinct from the “sentence
appropriateness”
review under Article 66, UCMJ; determining whether post-trial delay
violates an
appellant’s due process rights turns on four factors: (1) the
length of
the delay; (2) the reasons for the delay, (3) the appellant’s assertion
of the
right to a timely appeal; and (4) prejudice to the appellant).
United
States v. Richardson, 61 M.J. 113 (as a matter of due process, an
accused
has a constitutional right, as well as a regulatory right, to a fair
and
impartial panel).
2004
United
States v. Mason, 59 MJ 416 (we hold that the military
judge
erred in permitting trial counsel’s redirect examination of the DNA
expert on
the issue of whether either party had requested a retest; the Due
Process
Clause of the Fifth Amendment to the Constitution requires the
Government to
prove the defendant’s guilt beyond a reasonable doubt; therefore, the
burden of
proof to establish the guilt of the accused is upon the Government; in
the case
at bar, trial counsel’s question to the DNA expert of whether either
party had
requested a retest suggested that appellant may have been obligated to
request
a retest, and therefore obligated to prove his own innocence; in so
doing,
trial counsel improperly implied that the burden of proof had shifted
to
appellant, in violation of due process).
(we
hold that
the military judge’s permission of trial counsel’s improper redirect
examination of the DNA expert was harmless beyond a reasonable doubt
where the
evidentiary strength of the DNA evidence in this case was overwhelming,
where
the military judge instructed the members that the burden of proof to
establish
the guilt of the accused beyond a reasonable doubt was on the
government and
never shifts to the accused to establish his innocence or to disprove
those
facts which are necessary to establish each element of any particular
offense,
and where the government counsel reiterated the proper burden of proof
during
his closing argument).
United
States v. Toohey, 60 MJ 100 (the Due Process Clause
guarantees
a constitutional right to a timely review).
United
States v. Stirewalt, 60 MJ 297 (constitutional
challenges to
Article 125, UCMJ, based on the Supreme Court’s decision in Lawrence
v.
Texas must be addressed on an as applied, case-by-case basis; there
is a
tripartite framework for addressing Lawrence challenges within
the
military context: First, was the conduct that the accused was found
guilty of
committing of a nature to bring it within the liberty interest
identified by
the Supreme Court? Second, did the conduct encompass any behavior
or
factors identified by the Supreme Court as outside the analysis in
2003
United
States v. Mahoney, 58 MJ 346 (the constitutional
guarantee
of due process requires that criminal defendants be afforded a
meaningful
opportunity to present a complete defense).
(failing to disclose evidence favorable to an accused is a due
process
violation irrespective of the good faith or bad faith of the
prosecution).
(the Government’s failure to provide to the defense before trial a
letter
criticizing a key Government witness violated appellant’s
constitutional right
to due process of law under Brady v. Maryland, 373 U.S. 83
(1963)).
United
States v. Riley, 58 MJ 305 (an appellate court
violates
due process if it affirms an included offense on a theory not presented
to the
trier of fact).
Diaz
v. The Judge Advocate General of the Navy, 59 MJ
34
(petitioner has a constitutional right to a timely appellate review
guaranteed
him under the Due Process Clause).
United
States v. Simpson, 58 MJ 368 (the doctrine of
unfair
pretrial publicity is based upon the constitutional right to due
process).
2002
United
States v. Hollis, 57 MJ 74 (appellant
was not
denied due process by the failure to audiotape or videotape the
interviews of
child victims of sexual abuse; there is no rule requiring that medical
interviews be taped, there is no indication in the record that material
evidence was lost, and there is nothing in the record suggesting bad
faith).
2001
United
States v. Rogers, 54 MJ 244 (specification charged
under
Article 133, conduct unbecoming an officer, was not void for vagueness
because
it failed to allege a violation of a regulation or custom of the
service which
forbade an unprofessional relationship of inappropriate familiarity
between a
commander and a subordinate officer; the Constitution does not require
that a
regulation or custom of the service be established, with the possible
exception
of officer-enlisted “fraternization cases charged under Article 133
instead of
Article 134).
(officer charged with conduct unbecoming an officer for having an
unprofessional relationship of inappropriate familiarity between a
himself and
a subordinate officer was on fair notice that his conduct was
punishable under
Article 133 where a nonpunitive regulation gave examples of
unprofessional
relationships and where that officer had had occasion to discuss and
apply the
standards relating to personal relationships).
United
States v. Brown, No. 99-0983, 54 MJ 289 (Court of Appeals for
the Armed
Forces declined to determine whether the convening authority is
required to
receive an SJA’s recommendation before acting on a request to defer the
effective date of forfeitures or to waive automatic forfeiture of pay,
as well
as whether that recommendation must be served on the accused; but court
leaves
to the Executive Branch to consider whether, as a matter of law or
policy, and
consistent with due process considerations, such requests to the
convening
authority should be followed by a recommendation from the SJA and
service on
the accused with an opportunity to respond).
United
States v. McDonald, 55
MJ
173 (a fundamental requirement of due process is that individuals
subjected
to proceedings by the Government are entitled to the safeguards
established in
the governing statutes and regulations, and that the Government must
follow the
prescribed procedures, regardless whether they are constitutionally
required).
(the Constitution requires that evidence admitted during sentencing
must
comport with the utilitarian purpose of the Due Process Clause, i.e.
reliability, and procedural-due-process requirements).
(the Due Process Clause requires that the evidence introduced in
sentencing
meet minimum standards of reliability).
2000
United
States v. Norfleet, 53 MJ 262 (where appellant was
tried
by an impartial military judge, she was not denied due process although
she was
not tried by a military judge from another service; there was no legal
requirement to provide a military judge from another service; and,
absent a
showing that such action was taken in other cases in a manner that
created a
pattern of discrimination against enlisted persons or a suspect class,
there
was no merit in the claim of denial of due process).
United
States v. Wright, 53 MJ 476 (in a
“judgment of the Court”, MRE 413,
“Evidence of similar crimes in sexual assault cases”, was found to be
constitutional in the face of appellant’s claim that the rule violated
the Due
Process and Equal Protection Clauses of the Constitution).
1999
United
States v. Acevedo, 50 MJ 169 (interpretation of a
pretrial
agreement is a question of law to be reviewed de novo, generally
applying basic
principles of contract law except, however, where those principles are
outweighed by the Constitution’s Due Process Clause protections for an
accused).
United
States v. Williams, 50 MJ 436 (RCM 701 implements due
process
requirement that prosecution must disclose “as soon as practicable”
information
that is material to the issue of guilt or sentence).
United
States v. Riley, 50 MJ 410 (for an appellate court to
affirm an
included offense on a theory not presented to the trier of fact
violates an
accused’s due process right to be heard on the specific charges of
which he or
she is accused).
United
States v. Cooper, 51 MJ 247 (due process of law requires
that an
accused be tried by a judge who has no direct, personal, substantial,
pecuniary
or other disqualifying interest in the accused’s conviction).
United
States v. Gray, 51 MJ 1 (appellant was not denied due
process by
Judge Advocate General’s decision to establish and adhere to procedures
to
request funding for additional appellate expert mental health
assistance where
those procedures forwarded such requests to the appropriate forum for
consideration and action in a more efficient manner).
(double counting of aggravating factors did not exist where the
military
judge’s instructions allowed double murder to be considered only once
as an
aggravating factor; CAAF also declines to adopt rule against double
counting
aggravating circumstances based on a single offense and substantially
the same
evidence as no such rule appears in RCM 1004 and is not required by the
Due
Process Clause of the Fifth Amendment).
(requirement for trial by members in a capital case does not violate
the
Fifth and Eighth Amendment guarantee of due process and reliable
verdict; see
United States v. Loving,
41 MJ 213, 291 (1994), aff’d on
other
grounds, 517 U.S. 748 (1996)).
(capital court-martial in peacetime by a court-martial panel
composed of
fewer than twelve members does not deny accused due process of law
under the
Fifth, Sixth, and Eighth Amendments; see United States v.
Loving,
41 MJ 213, 287 (1994), aff’d on other grounds, 517 U.S. 748
(1996)).
(the appropriate test to apply to determine whether a court-martial
procedure violates due process is to ask whether the factors militating
in
favor of overturning that procedure are so extraordinarily weighty as
to
overcome the balance struck by Congress).
(appellant was entitled to no relief on claim that limitation on
enlisted
members of the accused’s unit serving on the accused’s court-martial
violated
due process; appellant failed to show that the factors militating in
favor of
overturning that limitation are so extraordinarily weighty as to
overcome the
balance struck by Congress).
(the lack of a system which designates minimum standards of
qualification
for defense counsel in capital cases was not shown to have denied
appellant due
process; see United
States v. Loving, 41 MJ 213,
298-299 (1994), aff’d
on other grounds, 517 U.S. 748 (1996)).
(voting procedures instructions which required members to vote first
on the
charged offense before voting on any lesser-included offenses was based
on RCM
921(c)(5), and CAAF perceived no real prejudice arising from this
voting
procedure; moreover, appellant failed to make a legally sufficient
denial of
due process argument in this regard).
(in light of the traditional practice at courts-martial,
instructions
reflecting that members have “equal voice”, and instructions condemning
the
influence of superiority in rank, appellant failed to establish a due
process
violation resulting from designation of the senior member as the
presiding
officer pursuant to RCM 502(b)(1)).