MISCELLANEOUS MATTERS: Speedy Trial: Post-Trial

2013 (September Term)

United States v. Lee, 73 M.J. 166 (in this case, appellant’s unconditional guilty pleas on rehearing waived review of any speedy appellate review claim relating to the post-trial period preceding the rehearing, including any prejudice from any additional time spent on a state public sex offender registry prior to the waiver; appellant’s guilty pleas occurred immediately after a motion for relief for the same post-trial appellate delay was fully briefed, argued, and denied, and appellant did not claim that the court-martial lacked jurisdiction over the offenses, did not litigate a motion under Article 10, UCMJ, did not challenge the voluntary and intelligent character of his pleas, and did not in any other way attempt to preserve the appellate delay issue for appeal). 

(applying the four-factor analysis of US v. Moreno, 63 MJ 129 (CAAF 2006) [(1) the length of the delay; (2) the reasons for the delay; (3) the appellant’s assertion of the right to timely review and appeal; and (4) prejudice] to the 141-day period between appellant’s sentencing rehearing and action by the convening authority, the CAAF concluded that the delay did not violate appellant’s due process right to speedy appellate review; although the 141-day was facially unreasonable under Moreno [where the convening authority did not act within 120 days of the completion of trial], 20 of those days were the result of appellant’s request for additional time to submit clemency matters, and clemency was awarded; furthermore, appellant did not demand speedy review during this period; and most importantly, because appellant’s name had already been removed from the state public sex offender registry before this 141-day period, he failed to identify any particularized prejudice resulting from this delay). 

United States v. Merritt, 72 M.J. 483 (due process entitles convicted servicemembers to a timely review and appeal of court-martial convictions).

(a four-factor test is employed to review claims of unreasonable post-trial delay, evaluating (1) the length of the delay; (2) the reasons for the delay; (3) the appellant’s assertion of the right to timely review and appeal; and (4) prejudice; once this due process analysis is triggered by a facially unreasonable delay, the four factors are balanced, with no single factor being required to find that post-trial delay constitutes a due process violation). 

(unless the post-trial delay is facially unreasonable, the full due process analysis will not be triggered). 

(if the constitutional due process inquiry for post-trial delay is triggered, the length of delay is itself balanced with the other factors and may, in extreme circumstances, give rise to a strong presumption of evidentiary prejudice affecting the fourth Barker v. Wingo, 467 US 514 (1972) factor; the length of delay calculation includes time caused by failures of appointed counsel and delays by the court itself). 

(under the reasons-for-the-delay factor in a due process analysis of post-trial delay, an appellate court looks at the government’s responsibility for the delay, as well as any legitimate reasons for the delay, including those attributable to an appellant; the court will examine each stage of the post-trial period because the reasons for the delay may be different at each stage and different parties are responsible for the timely completion of each segment; however, the court will not attribute to individual appellants the periods of appellate delay resulting from military appellate defense counsels’ requests for enlargements of time where the basis for the request is excessive workload). 

(under the prejudice factor in a due process analysis of post-trial delay, prejudice is assessed in light of the interests of those convicted of crimes to an appeal of their convictions unencumbered by excessive delay; there are three similar interests for prompt appeals: (1) prevention of oppressive incarceration pending appeal; (2) minimization of anxiety and concern of those convicted awaiting the outcome of their appeals; and (3) limitation of the possibility that a convicted person’s grounds for appeal, and his or her defenses in case of reversal and retrial, might be impaired). 

(under the minimization of anxiety and concern subfactor of the prejudice factor in a due process analysis of post-trial delay, an appellant must show particularized anxiety or concern that is distinguishable from the normal anxiety experienced by prisoners awaiting an appellate decision; this particularized anxiety or concern is thus related to the timeliness of the appeal, requires an appellant to demonstrate a nexus to the processing of his appellate review, and ultimately assists the appellate court to fashion relief in such a way as to compensate an appellant for the particular harm). 

(although post-trial delay of 1,024 days between the docketing of appellant’s appeal at the CCA and the CCA’s decision was clearly facially unreasonable, appellant failed to show that he was legally prejudiced by the appellate delay where (1) appellant was represented on appeal by civilian counsel and his counsel requested seven enlargements of time that were granted by the CCA – all of which were appellate filing delays attributable to appellant, (2) appellant’s assertion of his right to timely post-trial review was not timely because it was asserted only after his counsel had requested seven enlargements, (3) although appellant’s substantive appeal was successful, he suffered no prejudice as the result of oppressive incarceration where because the dismissed offense at issue had been merged for sentencing with another, appellant’s sentence would have been unchanged and he had no fear of retrial, and (4) while appellant’s anxiety over sex offender registration was understandable, because he remains convicted of receiving child pornography, his registration requirement remains the same; consequently, appellant was not entitled to relief on the post-trial delay issue).   

2012 (September Term)

United States v. Mackie, 72 M.J. 135 (even after an initial appellate court decision, the Moreno (63 MJ 129) standard for speedy post-trial review is still applicable as the case continues through the appellate process). 

(the over five years of post-trial delay from the initial CCA appellate review of this case until the final CCA opinion was issued affirming the findings and sentence, during which time the record was returned to the convening authority to order a sanity board, the sanity board was conducted, and the convening authority then took no further action on the case for over two years, was harmless beyond a reasonable doubt). 

2010 (September Term)

United States v. Arriaga, 70 M.J. 51 (whether an appellant has been deprived of his due process right to a speedy appellate review is a question of law that an appellate court reviews de novo; to determine this, the court balances the four Barker/Moreno factors: (1) the length of the delay; (2) the reasons for the delay; (3) the appellant’s assertion of the right to timely review and appeal; and (4) prejudice; no single factor is required, but a facially unreasonable length of delay triggers the full analysis). 

(an accused has a constitutional due process right to a timely full and fair review of his findings and sentence). 

(a presumption of unreasonable delay triggers the Barker four-factor analysis where the action of the convening authority is not taken within 120 days of the completion of trial; the government has the opportunity to rebut the presumption in the second Barker/Moreno factor, reasons for the delay, with legitimate reasons for the delay). 

(even in the absence of specific prejudice, a constitutional due process violation for post-trial delay still occurs if, in balancing the other three factors, the delay is so egregious that tolerating it would adversely affect the public’s perception of the fairness and integrity of the military justice system; relief in such cases is provided unless an appellate court is convinced that the post-trial delay was harmless beyond a reasonable doubt; furthermore, the court may assume a due process violation and proceed straight to the harmless beyond a reasonable doubt analysis; finally, even in instances where post-trial delay was not harmless beyond a reasonable doubt, the court cannot provide relief where there is no reasonable, meaningful relief available). 

(to trigger a full analysis under the Barker/Moreno factors, the post-trial delay must first be facially unreasonable; a delay of 120 days or more between the completion of trial and the convening authority’s action is presumed to be facially unreasonable). 

(in this case, the 243-day period from the conclusion of trial to the convening authority’s action was presumptively unreasonable on its face and therefore triggered the full Barker/Moreno analysis). 

(for the period of assessing appellate delay from the end of trial until the convening authority’s action, the clock starts to run the day that the trial is concluded and stops when the convening authority completes his action). 

(personnel and administrative issues are not legitimate reasons justifying otherwise unreasonable post-trial delay). 

(the obligation to ensure a timely review and action by the convening authority rests upon the government, and appellant is not required to complain in order to receive timely convening authority action). 

(in the case of appellate delay, prejudice should be assessed in light of the interests of those convicted of crimes to an appeal of their convictions unencumbered by excessive delay; those interests are: (1) prevention of oppressive incarceration pending appeal; (2) minimization of anxiety and concern of those convicted awaiting the outcome of their appeals; and (3) limitation of the possibility that a convicted person’s grounds for appeal, and his or her defenses in case of reversal and retrial, might be impaired; with respect to an accused claiming prejudice from appellate delay because of his anxiety and concern, he or she must demonstrate a particularized anxiety or concern that is distinguishable from the normal anxiety experienced by prisoners awaiting an appellate decision; to prevail on a claim of unreasonable post-trial delay alleging oppressive incarceration, an accused must first succeed on a substantive claim on appeal). 

(sentence appropriateness relief provides an appellant with substantive relief for the purposes of post-trial delay). 

(in this case, balancing of the four Barker/Moreno factors leads to the conclusion that the government deprived appellant of his due process right to speedy review and appeal; the unreasonable length of the delay of 243 days between the end of trial and the convening authority’s action, the lack of legitimate reasons advanced by the government for the delay, and the specific prejudice of an additional 51 days spent in confinement by appellant beyond his adjusted maximum release as a result of oppressive incarceration all weigh against the government; appellant’s failure to assert his right to timely post-trial review weighs against him, but only slightly). 

(a nonexclusive list of relief available to reviewing courts depending on the circumstances of individual cases includes: (a) day-for-day reduction in confinement or confinement credit; (b) reduction of forfeitures; (c) set aside of portions of an approved sentence including punitive discharges; (d) set aside of the entire sentence, leaving a sentence of no punishment; (e) a limitation upon the sentence that may be approved by a convening authority following a rehearing; and (f) dismissal of the charges and specifications with or without prejudice). 

United States v. Luke, 69 M.J. 309 (the CAAF’s methodology for reviewing issues of post-trial and appellate delay is to first determine whether the delay is facially unreasonable and, if so, it examines the four factors set forth by the Supreme Court in Barker v. Wingo, 407 US 514; those four factors are:  (1) the length of the delay, (2) the reasons for the delay, (3) the appellant’s assertion of the right to timely review and appeal, and (4) prejudice; if this analysis leads it to conclude that the appellant has been denied the due process right to speedy post-trial review and appeal, it grants relief unless it is convinced beyond a reasonable doubt that the constitutional error is harmless). 

 

(in view of the totality of the circumstances in this case, any violation in appellant’s due process right to speedy post-trial review and appeal as a result of a delay of over 11 years between the completion of his court-martial and the issuance of the CCA’s decision was harmless beyond a reasonable doubt; although the length of the delay was facially unreasonable, the majority of the delay was attributable to the procedural back and forth among the CAAF, the CCA, and the DuBay proceedings, and there was no merit in either of substantive issues appealed by appellant). 


2009 (September Term)


United States v. Mullins, 69 M.J. 113 (an appellate court reviews de novo claims that an appellant has been denied the due process right to a speedy post-trial review and appeal; when considering appellate delay, a court must balance four factors: (1) the length of the delay; (2) the reasons for the delay; (3) the appellant’s assertion of the right to timely review and appeal; and (4) prejudice; no single factor is required for finding a due process violation, and the absence of a given factor will not prevent such a finding; where an appellant meets his burden in demonstrating unreasonable appellate delay, the burden shifts to the government to show that the due process violation was harmless beyond a reasonable doubt). 

 

(even assuming a due process violation occurred in this case because of post-trial delay, it was harmless beyond a reasonable doubt where the record contained no evidence of prejudice warranting relief; although appellant contends that the delay kept him from receiving unemployment benefits because he lacked a DD-214, the record did not contain any authoritative evidence that a person in appellant’s circumstances would have been eligible for unemployment benefits and received them once his appeal was final).

 

United States v. Roach, 69 M.J. 17 (a 13-month delay by the CCA in releasing a decision in appellant’s case did not constitute a threshold showing of unreasonable delay warranting consideration of the factors from Barker v. Wingo, 407 US 514 (1972), in determining whether appellant’s due process right to a speedy post-trial review had been violated). 

 

(there was no malicious delay on the part of the CCA appellate judges in the first appellate decision in this case where the CCA identified a tension between two distinct lines of jurisprudence, and that tension was unresolved until the CAAF issued the second appellate decision in the case). 


2008 ( September Term)


United States v. Ashby, 68 M.J. 108 (in assessing whether a facially unreasonable delay has resulted in a due process violation, an appellate court weighs the following four Barker [407 US 514 (1972)] factors: (1) the length of the delay; (2) the reasons for the delay; (3) appellant’s assertion of the right to timely review and appeal; and (4) prejudice). 

 

(the unreasonable post-trial delay of over eight years in this case from the time appellant was sentenced to the CCA’s initial opinion violated appellant’s due process right to a speedy post-trial review and appeal; although appellant did not assert his right to a timely review until the CCA raised the issue, sua sponte, in its initial decision, and failed to establish prejudice, the length of delay was facially unreasonable, and there were no legally supportable explanations for the delay). 

 

(having found a due process violation in unreasonable post-trial delay, an appellate court will grant relief unless it finds, under the totality of the circumstances, that the government has met its burden of showing that the constitutional error was harmless beyond a reasonable doubt; determining whether a due process error was harmless beyond a reasonable doubt necessarily involves analyzing the case for “prejudice,” but that analysis for “prejudice” is separate and distinct from the consideration of prejudice as one of the four Barker [407 US 514 (1972)] factors). 

 

(under the totality of the circumstances, the due process violation arising from the post-trial delay of over eight years in this case from the time appellant was sentenced to the CCA’s initial opinion was harmless beyond a reasonable doubt, where there was no convincing evidence of prejudice in the record and prejudice from the length of the delay alone would not be presumed). 


United States v. Schweitzer, 68 M.J. 133 (convicted servicemembers have a due process right to timely review and appeal of courts-martial convictions; to rebut a due process violation, the government must show that the error was harmless beyond a reasonable doubt under the totality of the circumstances; where appellant has not suffered any prejudice under the fourth prong of the Moreno [63 MJ 129 (CAAF 2006)] speedy review and appeal test - ongoing prejudice in the form of oppressive incarceration, undue anxiety, or the impairment of the ability to prevail in a retrial - the government may more readily demonstrate that any error is harmless beyond a reasonable doubt). 

 

(under the totality of the circumstances, the violation of appellant’s due process right to speedy review and appeal arising from a eight-year delay from the announcement of his sentence until the CCA issued its original opinion in his case was harmless beyond a reasonable doubt, where there was no evidence that appellant suffered any prejudice as defined in prong four of the Moreno [63 MJ 129 (CAAF 2006)] speedy review and appeal test - ongoing prejudice in the form of oppressive incarceration, undue anxiety, or the impairment of the ability to prevail in a retrial). 

 

(a court of criminal appeals may affirm only the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved; under Article 66(c), a CCA has the authority to grant relief for excessive post-trial delay without a showing of actual prejudice within the meaning of Article 59(a), UCMJ, if it deems relief appropriate under the circumstances; the CCA is required to determine what findings and sentence should be approved, based on all the facts and circumstances reflected in the record, including unexplained and unreasonable post-trial delay). 

 

(because in the absence of evidence to the contrary, judges of the courts of criminal appeals are presumed to know the law and to follow it, there is no reason to doubt that the CCA panel in appellant’s case considered discretionary relief before affirming his sentence; furthermore, under the totality of the circumstances, the CCA did not abuse its discretion in not granting discretionary sentencing relief on the basis of the eight-year delay from the announcement of the sentence until its original opinion). 

United States v. Bush, 68 M.J. 96 (requiring an appellant, who asserts that his due process right to a speedy post-trial review was violated, to provide independent evidence to substantiate a claim that he was impaired in his ability to obtain employment as a result of post-trial delay does not conflict with Ginn [47 MJ 236 (CAAF 1996)], a case that recognizes that a court of criminal appeals’s factfinding authority under Article 66(c) does not extend to deciding disputed question of fact pertaining to a post-trial claim, solely or in part on the basis of conflicting affidavits; as a general matter, the principles of Ginn provide a workable framework for analyzing when post-trial issues framed by post-trial affidavits can be resolved without ordering a factfinding hearing under DuBay [17 CMA 147, 37 CMR 411 (1967)]; however, if substantive law places a burden of proof or persuasion on either party with respect to issues raised post-trial, Ginn and its progeny do not relieve that party of such a burden; nor does Ginn alter the fundamental requirement that a witness’s testimony be based upon personal knowledge).       

 

(where an appellant claims that his due process right to a speedy post-trial review was violated, in order to establish prejudice under the fourth Barker [407 US 514 (1972)] factor on the grounds that post-trial delay impaired his ability to secure employment, an appellant must do something more than provide his own affidavit asserting that a specific employer declined to hire him because he lacked a DD Form 214; an appellant must provide corroborating evidence to support his claim of employment prejudice; in most cases, the appropriate source of information pertaining to the hiring decisions of a potential employer will be a representative of the potential employer itself). 

 

(in the context of appellant’s claim of employment prejudice under the fourth Barker [407 US 514 (1972)] factor to support his claim that his due process right to a speedy post-trial review was violated, he failed to provide independent evidence to support his claim that lack of a DD Form 214 impaired his ability to secure employment and did not demonstrate a valid reason for not doing so; consequently, the fourth Barker factor is resolved against appellant before the question even arises as to whether, under Ginn [47 MJ 236 (CAAF 1996)], factual issues raised in his declaration could be resolved without a DuBay [17 CMA 147, 37 CMR 411 (1967)] hearing).


(the determination of harmlessness for post-trial delay is different than that applied to constitutional trial errors; in the trial error arena, a determination of harmless beyond a reasonable doubt tests whether, beyond a reasonable doubt, the error did not contribute to the defendant’s conviction or sentence; in contrast, post-trial delays do not necessarily impact directly the findings or sentence; instead, an appellate court must review the record de novo to determine whether other prejudicial impact is present from the delay; unless the court concludes beyond a reasonable doubt that the delay generated no prejudicial impact, the government will have failed to attain its burden). 

 

(where there is a post-trial delay due process violation, the burden to show harmlessness beyond a reasonable doubt remains upon the government). 

 

(an appellate court reviews the totality of the circumstances to determine whether a post-trial delay due process violation is harmless beyond a reasonable doubt). 

 

(where an appellant alleges a due process violation in a post-trial delay context, and where a due process violation is found, the analysis performed by an appellate court necessarily involves two separate prejudice determinations; the initial prejudice review occurs in evaluating the fourth Barker [407 US 514 (1972)] factor, which defines prejudice to include oppressive incarceration, undue anxiety, and limitation of the possibility that a convicted person’s grounds for appeal, and his defenses in case of reversal and retrial, might be impaired; if a due process violation is found after balancing the Barker factors, an appellate court determines whether, under the totality of the circumstances, the error is harmless beyond a reasonable doubt; that harmless beyond a reasonable doubt review necessarily involves a prejudice analysis, and although it involves a review of the same record, the scope and burden differ from the Barker prejudice analysis). 

 

(no single factor is required for finding a due process violation as a result of post-trial delay, and the absence of a given factor will not prevent such a finding).


(in a post-trial delay due process analysis, Barker [407 US 514 (1972)] factor four addresses specific prejudice to an appellant, not public perception; the public perception analysis is utilized in quantifying the appropriate weight that is to be given to Barker factors one (length of delay) and two (reasons for delay) when balancing all of the factors). 

 

(with respect to determining whether an appellant meets his burden of demonstrating fourth-prong, Barker [407 US 514 (1972)] prejudice or with respect to reviewing the entire record to determine if a post-trial delay due process violation is harmless beyond a reasonable doubt, a reviewing court must first determine whether post-trial submissions merit consideration). 

 

(in circumstances where a record establishes that an appellant has suffered Barker [407 US 514 (1972)] prejudice, the government’s burden to establish that the constitutional violation was harmless beyond a reasonable doubt may be difficult to attain). 

 

(in those cases where the record does not reflect Barker [407 US 514 (1972)] prejudice, as a practical matter, the burden to establish harmlessness from the post-trial delay may be more easily attained by the government). 

 

(at the totality-of-the-circumstances, harmless-error prejudice determination stage, there is no presumption of prejudice in cases where an appellate court has found a due process violation as a result of unreasonable post-trial delay in the absence of Barker [407 US 514 (1972)] prejudice; an appellate court does not presume prejudice based on the length of the delay alone).     

 

(under the totality of the circumstances and the entire record, violation of appellant’s due process right to speedy post-trial review by a delay of more than seven years from his court-martial to the docketing of his case in the court of criminal appeals was harmless beyond a reasonable doubt, where the record was bereft of any evidence of prejudice to appellant as a result of the delay; appellant’s declaration as to the reasons that a particular employer declined to hire him was not based on personal knowledge, and as such, his unsupported allegations of employment prejudice had no impact under the totality of the circumstances review). 

2008 (Transition)

 

United States v. Allende, 66 M.J. 142 (seven-year delay between adjournment of appellant’s court-martial and resolution of his Article 66, UCMJ, appellate review was assumed error, but was harmless error beyond a reasonable doubt, where appellant had not suffered ongoing prejudice in the form of oppressive incarceration, undue anxiety, or the impairment of the ability to prevail in a retrial, had not suffered detriment to his legal position in the appeal as a result of the delay, and failed to provide any substantiated evidence that his ability to obtain employment had been impaired because he had not been able to show employers a DD-214, the certificate of release from active duty).    


United States v. Othuru, 65 M.J. 375 (an appellate court reviews de novo whether appellant was denied due process due to post-trial and appellate delay; the methodology for reviewing such issues requires an appellate court to ask first whether the particular delay is facially unreasonable; if it concludes that the delay is facially unreasonable, then it examines the four factors set forth in Barker v. Wingo, 407 US 514, 530 (1972):  (1) the length of the delay; (2) the reasons for the delay; (3) appellant’s assertion of the right to timely review and appeal; and (4) prejudice).

 

(a delay from trial to completion of review at the CCA of three years, six months, and twenty days was facially unreasonable and therefore sufficient to trigger an analysis of the four Barker factors). 

 

(appellant was not denied due process in the processing of his appeal by a delay of 1,298 days between the end of his trial and the completion of appellate review by the CCA, where although the length of the delay was unreasonable, and there was no good cause for the delay, appellant did not complain about the delay until he filed his initial brief at the CCA and there was no basis for a finding of prejudice).

 

2007


United States v. Harrow, 65 M.J. 190 (an overall post-trial delay of 1,467 days between the trial and completion of review at the CCA was facially unreasonable; because the post-trial delay was facially unreasonable, the four factors set forth in Barker v. Wingo, 407 U.S. 514, 530 (1972), must be examined:  (1) the length of the delay; (2) the reasons for the delay; (3) the appellant’s assertion of the right to timely review and appeal; and (4) prejudice; however, a separate analysis of each factor need not be conducted if an appellate court can assume error and proceed directly to the conclusion that any error was harmless beyond a reasonable doubt; in this case, any denial of appellant’s right to speedy post-trial review and appeal was harmless beyond a reasonable doubt in view of the totality of the circumstances and entire record, notwithstanding appellant’s claim that due to the delay, her lead appellate counsel was unable to argue her case). 


United States v. Mack, 65 M.J. 108 (even assuming an unreasonable length of time and a timely assertion of the right to speedy appellate review, appellant in this case has failed to establish either that he was denied timely review of a meritorious appellate issue or that he otherwise suffered cognizable prejudice; accordingly, no further relief beyond that granted at the court below was warranted).   


United States v. Young, 64 M.J. 404 (in reviewing issues of post-trial and appellate delay, an appellate court first asks whether the particular delay is facially unreasonable; if it concludes that the delay is facially unreasonable, it then examines the following four factors:  (1) the length of the delay; (2) the reasons for the delay; (3) the appellant’s assertion of the right to timely review and appeal; and (4) prejudice; if this analysis leads to the conclusion that an appellant has been denied the due process right to speedy post-trial review and appeal, it then grants relief unless it is convinced beyond a reasonable doubt that the constitutional error is harmless). 


(although the delay of 1,637 days between the trial and completion of review at the court of criminal appeals was facially unreasonable, any denial of appellant’s due process right to speedy post-trial review and appeal was harmless beyond a reasonable doubt where no merit was found in any other issue raised by appellant on appeal). 


United States v. Canchola, 64 M.J. 245 (a claim of denial of a due process right to speedy post-trial review is evaluated under the four factors of Barker v. Wingo, 407 U.S. 514, 530 (1972):  (1) the length of the delay; (2) the reasons for the delay; (3) the appellant’s assertion of his right to timely post-trial review and appeal; and (4) prejudice). 


(the high demands placed upon military personnel in supporting the national interests of the United States, particularly in combat or hostile environments, is an appropriate consideration when assessing the post-trial delay factors under the Barker analysis; where operational requirements affect post-trial processing delays, staff judge advocates and convening authorities should ensure that those reasons are documented in the record of trial; reviewing courts can then weigh and balance those reasons in determining whether they provide adequate explanation for any apparent post-trial delays; however, a general reliance on budgetary and manpower constraints will not constitute reasonable grounds for delay nor cause this factor to weigh in favor of the government). 


(in this case, the staff judge advocate’s proffered explanation for the post-trial delay was too general to demonstrate that the “unforeseeable events” had a reasonably direct impact on the timeliness of post-trial processing; in particular, after the military judge authenticated the record of trial, 503 days elapsed before the staff judge advocate’s recommendation was prepared; the post-trial recommendation was barely four pages long and contained nothing that appeared to be unusual or to have warranted substantial additional preparation time; the record upon which that recommendation was based was a fifty-nine page guilty plea; in short, the proffered general explanation for this glaring delay in reviewing a relatively simple case did not withstand scrutiny; accordingly, the absence of reasons for the delay in post-trial processing caused the second Barker factor to weigh somewhat in appellant’s favor). 


(in balancing the Barker factors, in cases where an appellate court finds no prejudice under the fourth prong, a due process violation will result only when, in balancing the other three factors, the delay is so egregious that tolerating it would adversely affect the public’s perception of the fairness and integrity of the military justice system). 


(appellant was not denied his due process right to a timely post-trial review and speedy appeal where although the delay of 1,263 days between sentencing and the decision of the lower court was facially unreasonable and the reasons for the delay weighed somewhat in appellant’s favor, appellant failed to make a timely assertion of his right to speedy review and failed to demonstrate that he was prejudiced by the delay; also, the delay was not so egregious that tolerating it would adversely affect the public’s perception of the fairness and integrity of the military justice system).  


United States v. Simon, 64 M.J. 205 (the CCA has two distinct responsibilities in addressing appellate delay; first, the court may grant relief for excessive post-trial delay under its broad authority to determine sentence appropriateness under Article 66(c), UCMJ; second, as a matter of law, the court reviews claims of untimely review and appeal under the Due Process Clause of the Constitution). 


(because a sentence appropriateness analysis under Article 66(c), UCMJ, is highly case specific, the details of a servicemember’s post-trial situation constitute an important element of a CCA’s analysis; likewise, 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. Finch, 64 M.J. 118 (an appellate court reviews claims of post-trial and appellate delay using the four-factor analysis from Barker v. Wingo; if there has been a denial of due process, appellant is entitled to relief unless the court is convinced that the error was harmless beyond a reasonable doubt; where an appellate court can determine that any violation of the due process right to speedy post-trial review and appeal is harmless beyond a reasonable doubt, it need not undertake the four-factor Barker analysis prior to disposing of that post-trial or appellate delay issue). 


United States v. Haney
, 64 M.J. 101 (there are four factors used to determine whether post-trial delay violates due process rights: (1) length of the delay, (2) reasons for the delay, (3) appellant’s assertion of his right to a timely appeal, and (4) prejudice to appellant; once this due process analysis is triggered by a facially unreasonable delay, the four factors are balanced, with no single factor being required to find that post-trial delay constitutes a due process violation). 


(a delay of 2,639 days from sentencing to the opinion by the court of criminal appeals is facially unreasonable). 


(where a lack of institutional vigilance causes a case to languish on appeal, appellant is effectively denied his statutory right to the free and timely professional assistance of detailed military appellate defense counsel). 


(even though appellant suffered no prejudice from the appellate delay, the egregiousness of the seven year unexplained delay in this case was such that the perception of fairness of the military justice system is potentially jeopardized; thus, there was a due process violation). 


(the seven year appellate delay in this case was harmless beyond a reasonable doubt, where there was neither the denial of properly and timely relief on a meritorious issue nor any particularized anxiety or hardship that might arise from a rehearing, and there was no cognizable prejudice arising from the delay; appellant served only 107 days of confinement and was likely released on appellate leave thereafter). 


United States v. Gosser
, 64 M.J. 93 (the test for excessive post-trial delay looks at four Barker v. Wingo factors: (1) the length of the delay, (2) the reasons for the delay, (3) the appellant’s assertion of the right to timely review and appeal, and (4) prejudice; a full due process analysis is triggered where the length of delay is facially unreasonable). 


(a delay of 548 days between sentencing and the convening authority’s initial action and an additional 141 days to transmit the record for docketing at the court of criminal appeals was facially unreasonable in commencing review under Article 66(c), triggering a due process analysis). 


(appellant’s assertion of a right to speedy review is entitled to strong evidentiary weight in determining whether he was deprived of the right). 


(in order to prevail on the question whether appellant was prejudiced by excessive post-trial delay, appellant must specifically identify how he was prejudiced due to the delay; mere speculation is not enough). 


(assertions by appellant’s defense counsel in his post-trial clemency submissions to the convening authority that, because of the excessive delay in the post-trial processing, appellant was unable to produce the discharge documentation necessary to apply for college financial aid, failed to substantiate a claim of prejudice; there was no substantive evidence from persons with direct knowledge of the pertinent facts, nor was there adequate detail to give the government a fair opportunity to rebut the contention). 


(despite the fact that appellant failed to show prejudice, a two-year delay in commencing review under Article 66(c), UCMJ, can diminish the public’s perception of the fairness of military justice; therefore, under the Barker-factor analysis in this case, appellant was denied his due process right to speedy review and appeal). 


United States v. Gosser, 64 M.J. 93 (a two-year delay in commencing review under Article 66(c), UCMJ, that violated appellant’s right to due process was harmless beyond a reasonable doubt where there was no showing that appellant was prejudiced).  


United States v. Rodriguez-Rivera
, 63 M.J. 372 (in analyzing whether appellate delay has violated the due process rights of an accused, an appellate court first looks at whether the delay in question is facially unreasonable; if it is, then it examines and balances the four factors set forth in Barker v. Wingo: (1) the length of the delay; (2) the reasons for the delay; (3) appellant’s assertion of the right to timely review and appeal; and (4) prejudice). 


(if an appellate court concludes that appellant has been denied the due process right to speedy post-trial review and appeal, it will grant relief unless it is convinced beyond a reasonable doubt that the constitutional error is harmless). 


(in cases involving claims that appellant has been denied his due process right to speedy post-trial review and appeal, an appellate court may look initially to whether the denial of due process, if any, is harmless beyond a reasonable doubt; an appellate court will apply a similar analysis where, even though the denial of due process cannot be said to be harmless beyond a reasonable doubt, there is no reasonable, meaningful relief available). 


(even assuming that the delay of over six years to complete appellant’s appeal of right denied him his right to speedy review and appeal, no additional relief is appropriate or warranted where appellant had served his full term of confinement and reduction of adjudged forfeitures would have no meaningful effect in light of the provisions for automatic forfeitures; in addition, reducing the period of confinement enough to have a significant impact upon collected forfeitures would also require a dramatic reduction in the period of confinement that is unwarranted under the circumstances of this case; to fashion relief that would be actual and meaningful in this case would be disproportionate to the possible harm generated from the delay). 


United States v. Toohey, 63 M.J. 353 (convicted servicemembers have a constitutional due process right to a timely review and appeal of courts-martial convictions). 


(a due process analysis of speedy post-trial review and appeal cases utilizes four Barker factors:  (1) the length of the delay; (2) the reasons for the delay; (3) appellant’s assertion of the right to timely review and appeal; and (4) prejudice; once a due process analysis is triggered by a facially unreasonable delay, the four factors are balanced, with no single factor being required to find that post-trial delay constitutes a due process violation; each factor is analyzed and a determination is made as to whether that factor favors the government or appellant; an analysis of the factors is then balanced to determine whether there has been a due process violation; no single factor is required for finding a due process violation and the absence of a given factor will not prevent such a finding). 


(an aggregate delay of 2,240 days between the completion of the court-martial and the decision of the court of criminal appeals is facially unreasonable, even for a serious contested case, triggering the four-factor due process analysis). 


(where appellant has asserted his speedy trial right, it is entitled to strong evidentiary weight in determining whether he is being deprived of the right). 


(the framework for analyzing prejudice under the fourth Barker factor considers three interests:  (1) prevention of oppressive incarceration pending appeal; (2) minimization of anxiety and concern of those convicted awaiting the outcome of their appeals; and (3) limitation of the possibility that a convicted person’s grounds for appeal, and his or her defenses in case of reversal and retrial, might be impaired; the oppressive incarceration pending appeal subfactor relates to the substantive merit of appellant’s grounds for appeal; the anxiety and concern subfactor involves constitutionally cognizable anxiety that arises from excessive delay - appellant is required to show particularized anxiety or concern that is distinguishable from the normal anxiety experienced by prisoners awaiting an appellate decision; and the final subfactor, impairment of the ability to present a defense at a rehearing, relates directly to whether an appeal on a distinct substantive issue is found to be meritorious and whether a rehearing has been authorized). 


(where there is no finding of Barker prejudice, an appellate court will find a due process violation only when, in balancing the other three factors, the delay is so egregious that tolerating it would adversely affect the public’s perception of the fairness and integrity of the military justice system). 


(a delay of 2,240 days between the completion of the court-martial and the decision of the court of criminal appeals violated appellant’s due process right to speedy review and appeal, notwithstanding the fact that appellant suffered no Barker prejudice from the delay; considering the first three factors weigh heavily in appellant’s favor - unreasonably lengthy delay, no justifiable reasons for the delay, and frequent assertion of the right to speedy review, the weight of these factors leads to the conclusion that the delay in appellant’s case is so egregious that tolerating it would adversely affect the public’s perception of the fairness and integrity of the military justice system). 


United States v. Harvey, 64 M.J. 13 (four factors determine whether post-trial delay violates due process rights:  (1) the length of the delay; (2) the reasons for the delay; (3) the appellant’s assertion of his right to a timely review; and (4) prejudice to the appellant; once this due process analysis is triggered by a facially unreasonable delay, the four factors are balanced, with no single factor being required to find that post-trial delay constitutes a due process violation). 


(2,031 days for a first-level appellate review by a service court of criminal appeals is facially unreasonable as it clearly is excessive and inordinate). 


(in balancing the four factors, where an appellant has not shown prejudice under the fourth factor, an appellate court will find a due process violation only when, in balancing the other three factors, the delay is so egregious that tolerating it would adversely affect the public’s perception of the fairness and integrity of the military justice system; in this case, the unexplained and unreasonably lengthy delay of 2,031 days for a first-level appellate review weighs heavily in appellant’s favor; on balance, appellant was denied her due process right to speedy review and appeal notwithstanding her being unable to establish specific prejudice under the fourth factor). 


United States v. Dearing
, 63 M.J. 478 (servicemembers have a due process right to timely review and appeal of courts-martial convictions). 


(appellant was denied his due process right to speedy review and appeal where the unexplained and unreasonably lengthy delay and specific prejudice arising from the appellate delay effectively denied appellant his right to the free professional assistance of detailed military appellate defense counsel). 


United States v. Allison, 63 M.J. 365 (assuming that a delay of over five years to complete the accused’s appeal of right denied him his right to speedy review and appeal, the error was harmless beyond a reasonable doubt where there was no merit in the accused’s other issue on appeal and the totality of the circumstances of this case were considered). 


United States v. Osheskie
, 63 M.J. 432 (in this case, even if appellant was denied his due process right to speedy review and appeal by a delay of almost five years from the date of sentence to completion of his Article 66, UCMJ, review, that error was harmless beyond a reasonable doubt and no relief is warranted). 


United States v. Moreno, 63 M.J. 129 (an appeal that is inordinately delayed is as much a meaningless ritual, as an appeal that is adjudicated without the benefit of effective counsel or a transcript of the trial court proceedings). 


(servicemembers have a due process right to timely review and appeal of courts-martial convictions). 


(post-trial delay of 1,688 days between completion of a court-martial and the decision of the court of criminal appeals is facially unreasonable, triggering the remaining Barker due process factors).  


(the period of 490 days between the end of trial and the convening authority’s action was excessive for the post-trial processing of this case; the processing in this segment is completely within the control of the government and no exceptional circumstances were offered to explain this delay). 


(the 76 days between the convening authority’s action and docketing the case before the court of criminal appeals is unexplained, and delays involving this essentially clerical task have been categorized as the least defensible of all post-trial delays). 


(the accused could not be held accountable for the post-trial delay period of 925 days from which the case was docketed at the court of criminal appeals until the briefing was complete, even though the appellate defense counsel sought and was granted eighteen enlargements of time within which to file a brief, where the majority of the enlargements were sought because of “other cases load commitments,” and there was no evidence that counsel’s requests for delay benefited the accused or that the accused was consulted about and agreed to the delays). 


(responsibility for the portion of post-trial delay occasioned by the appellate defense counsel’s caseload and the burden placed upon appellate defense counsel initially rests with the government; the government must provide adequate staffing within the appellate defense division to fulfill its responsibility under the UCMJ to provide competent and timely representation).    


(a period of post-trial delay of slightly over six months from the submission of final briefs to the decision of the court of criminal appeals is not an unreasonable time for review by a court of criminal appeals; a more flexible review of this period is applied where the exercise of the judicial decision-making authority of a court of criminal appeals is involved). 


(the failure of an accused to object to any post-trial delay or assert his right to timely review and appeal prior to his arrival at an appellate court did not weigh heavily against him in assessing whether the post-trial delay violated his right to due process where the obligation to ensure a timely review and action by the convening authority rested upon the government and the accused was not required to complain in order to receive a timely convening authority’s action; similarly, the accused bore no responsibility for transmitting the record of trial to the appellate court after action). 


(requiring an accused to complain about appellate delay either to his appellate counsel who sought multiple enlargements of time because of other case commitments or to the appellate court that granted the enlargements on a routine basis is a paradox; while this factor weighs against an accused, the weight against him is slight given that the primary responsibility for speedy processing rests with the government and those to whom he could complain were the ones responsible for the delay). 


(appellant showed constitutional anxiety that is distinguishable from the normal anxiety experienced by prisoners awaiting appeal, thus establishing that he had suffered some degree of prejudice from post-trial delay, where he was required to register as a sex offender upon his release from incarceration without the opportunity of having his appeal of right heard and decided). 


(appellant was denied his due process right to speedy review and appeal because of the unreasonably lengthy post-trial delay of 1,688 days between the completion of his court-martial and the decision of the court of criminal appeals, the lack of any constitutionally justifiable reasons for the delay, and the prejudice suffered by him as a result of oppressive incarceration and anxiety). 


(the unique nature of review under Article 66(c), UCMJ, calls for, if anything, even greater diligence and timeliness than is found in the civilian system). 


(delays have been tolerated at all levels in the military justice system so much so that in many instances they are now considered the norm; the effect of this opinion is to provide notice that unreasonable delays that adversely impact an appellant’s due process rights will no longer be tolerated). 


2005


United States v. Bodkins, 60 MJ 322 (the responsibility of the convening authority to complete post-trial processing in a timely fashion is not dependent upon a request to do so from the accused).

 

(a court of criminal appeals must review the record in each case referred to it and may affirm only such findings of guilty and the sentence or such part or amount of the sentence as it finds correct in law and fact and determines, on the basis of the entire record, should be approved; in performing its affirmative obligation to consider sentence appropriateness, the court must take into account all the facts and circumstances reflected in the record, including any unexplained and unreasonable post-trial delay).

 

(where the post-trial processing of a case is unreasonable, unexplained, and dilatory, the court of criminal appeals erred in asserting that the defense was required to ask for timely processing, and that failure to do so waived any right to relief).

 

(under United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002), the court of criminal appeals has broad discretion to grant or deny relief for unreasonable or unexplained post-trial delay, and a finding of specific prejudice is not required; the court has discretion to take into account the impact -- or lack thereof -- of any delay on the accused; in so doing, the court may consider the absence of a defense request for action as one factor among other considerations in assessing the impact of delay in a particular case, but it may not elevate that factor into the conclusive basis for denying relief by using the mere absence of a request to find waiver). 

 

(the court of criminal appeals may rely upon continuing eligibility for limited military benefits as a factor in assessing the impact of post-trial delay, but it must do so in a manner that focuses on the circumstances of the particular case; because post-trial processing entails continuing eligibility for benefits in all cases, it is not appropriate to rely on the availability of benefits as a basis for denying relief in a particular case without relating it to the circumstances of the accused in that case). 

 

United States v. Oestmann, 61 M.J. 103 (in the course of addressing the issue of timely appellate review and finding that appellant had failed to show that the delay was unreasonable, the court below commented that appellant did not raise the issue before the convening authority acted; however, the timeliness issue did not involve the period preceding the convening authority’s action; rather, the issue involved the period after the convening authority acted -- the unexplained and unusual period of more than one year and five months to accomplish the routine, nondiscretionary, ministerial task of transmitting the record from the convening authority to the appellate review activity; because the court below did not focus on the relevant period of delay, we decline to rely on the court’s conclusion that relief would not be warranted for unreasonable and unexplained delay and remand it to the lower court for further review of the sentence under Toohey, Diaz, Tardif, and Jones). 

United States v. Jones, 61 M.J. 80 (where appellant’s trial lasted fifty-five minutes and resulted in a thirty-seven-page record of trial, and 363 days elapsed before the record was docketed with the lower appellate court, this unexplained post-trial delay was facially unreasonable).

 

(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). 

 

(the “length of delay” factor serves two functions:  (1) the length of delay is to some extent a triggering mechanism, and unless there is a period of delay that appears, on its face, to be unreasonable under the circumstances, there is no necessity for inquiry into the other factors that go into the balance; (2) if the constitutional inquiry has been triggered, the length of delay is itself balanced with the other factors and may, in extreme circumstances, give rise to a strong presumption of evidentiary prejudice affecting the fourth factor).

 

(in this case, the post-trial delay was facially unreasonable; the Government offered no justification for the appellate delay and the record failed to disclose any; the record reflected that appellant complained about the delay in post-trial processing; and the excessive post-trial delay prejudiced appellant by interfering with his post-military employment opportunities).

 

(interference with post-military employment opportunities is recognized as a form of prejudice that warrants relief for unreasonable post-trial delay).

 

(appellant demonstrated that unreasonable post-trial delay prejudiced him as a matter of law and violated his due process rights, where his own declaration and three unrebutted declarations from officials of a potential civilian employer indicated that he would have been considered for employment during period of delay or actually hired if he had possessed a discharge certificate, or DD-214).

 

(denial of the right to speedy trial results in dismissal of the charges only if reversible trial errors occurred and it is impossible to cure those errors at a rehearing because of the excessive post-trial delay). 

 

(appellate courts are not limited to either tolerating the intolerable or giving an appellant a windfall; rather, in cases involving unreasonable post-trial delay, courts should tailor an appropriate remedy, if any is warranted, to the circumstances of the case).

 

(in this case, an appropriate remedy is to disapprove the bad-conduct discharge, where appellant pleaded guilty, and nothing that has occurred since trial has suggested that the findings were not accurate; setting aside the findings would be a windfall for appellant; setting aside the bad-conduct discharge is a remedy more proportionate to the prejudice that the unreasonable post-trial delay has caused; the post-trial delay has had an adverse effect on appellant’s ability to find employment; removing the bad-conduct discharge’s adverse effect on appellant’s employment opportunities may help to restore him to the position he would have been in had the post-trial review been accomplished with reasonable speed). 

 

2004

 

United States v. Toohey, 60 MJ 100 (this Court has long recognized that an accused has the right to a timely review of his or her findings and sentence; this includes a right to a reasonably timely convening authority’s action, the reasonably prompt forwarding of the record of trial to the service’s appellate authorities, and reasonably timely consideration by the military appellate courts). 

 

(a military appellant’s right to a full and fair review of his findings and sentence under Article 66 embodies a concomitant right to have that review conducted in a timely fashion; the Courts of Criminal Appeals’ unique powers and responsibilities call for, if anything, even greater diligence and timeliness than is found in the civilian system).

 

(federal courts generally consider four factors to determine whether appellate delay violates an appellant’s due process rights:  (1) length of the delay; (2) reasons for the delay; (3) the appellant’s assertion of his right to a timely appeal; and (4) prejudice to the appellant).

 

(the length of delay factor plays two roles; first, the length of the delay is to some extent a triggering mechanism, and unless there is a period of delay that appears, on its face, to be unreasonable under the circumstances, there is no necessity for inquiry into the other factors that go into the balance; second, if the constitutional inquiry has been triggered, the length of delay is itself balanced with the other factors and may, in extreme circumstances, give rise to a strong presumption of evidentiary prejudice affecting the fourth factor).

 

(the first step in evaluating appellate delay is to determine whether the length of delay triggering mechanism has been pulled; this, in turn, requires us to consider a threshold question: How much delay is too much?; most courts evaluating such delay apply the first factor on a case-by-case basis; many factors can affect the reasonableness of appellate delay; these include not only such universal concerns as length of the record and complexity of the issues, but also military-unique considerations such as operational commitments that may delay transmission of the record to the Court of Criminal Appeals; these variables convince us that there is no talismanic number of years or months of appellate delay after which due process is automatically violated; whether appellate delay satisfies the first criterion is best determined on a case-by-case basis).

 

(in this case, petitioner has made a threshold showing of a period of appellate delay that appears, on its face, to be unreasonable under the circumstances where the aggregate delay is nearly six years from his conviction and sentence and where the government has not attempted to defend the pace of petitioner’s appeal).

 

(concluding that the aggregate delay in this case appears facially unreasonable is merely the beginning of the due process analysis; the optimal resolution of this petition for extraordinary relief is to provide the Court of Criminal Appeals, in the first instance, with the task of evaluating the four appellate delay factors to determine whether a Fifth Amendment due process violation has occurred and, if so, to determine an appropriate remedy).

 

United States v. Rodriguez, 60 MJ 239  (although eight-year, nine-month period between sentencing and final action by the Court of Criminal Appeals might have constituted undue delay, accused did not establish that he was prejudiced by the delay because his defense counsel was unable to continue representing him at DuBay hearing due to counsel’s military reassignment). 

 

2003

Diaz v. The Judge Advocate General of the Navy, 59 MJ 34 (this Court has long recognized that an accused has the right to a timely review of his or her findings and sentence; that review spans a continuum of process from review by the convening authority under Article 60, UCMJ, to review by a Court of Criminal Appeals under Article 66, UCMJ, to review, in appropriate cases, by this Court under Article 67, UCMJ).

(petitioner’s right to a full and fair review of his findings and sentence under Article 66 embodies a concomitant right to have that review conducted in a timely fashion).

(appellate counsel caseloads are a result of management and administrative priorities and as such are subject to the administrative control of the government; to allow caseloads to become a factor in determining whether appellate delay is excessive would allow administrative factors to trump the Article 66 and due process rights of appellants; to the contrary, the government has a statutory responsibility to establish a system of appellate review under Article 66 that preserves rather than diminishes the rights of convicted service members; in connection with that responsibility, the government has a statutory duty under Article 70 to provide petitioner with appellate defense counsel who is able to represent him in both a competent and timely manner before the Court of Criminal Appeals).

(courts have not hesitated to take action when public defender programs fail to represent their clients in a timely manner; the military appellate courts should be no less diligent in protecting the rights of convicted service members).

(unlike the civilian criminal justice system, the Courts of Criminal Appeals have unique fact finding authority, and that aspect of a service member’s case is not concluded until that review is completed; the nature of this review calls for, if anything, even greater diligence and timeliness than is found in the civilian system).

(the fact remains that through ten enlargements of time, petitioner’s first appellate defense counsel did not look at the substance of petitioner’s case and did not know when she would be able to do so; the appointment of a new appellate defense counsel did not rectify this problem, because that attorney concedes that he will not be able to look at the case in the foreseeable future; we reject any suggestion that institutional vigilance is evident in this case or that vigilance has been applied to ensure that petitioner receives the rights he is entitled to under Article 66 and Article 70).

(it is disingenuous for the government to argue that petitioner has not made a colorable claim of any possibility of relief, when the system that the government controls has to date deprived petitioner of the timely assistance of counsel that would enable him to perfect and refine the legal issues he has asserted).

(given that over 900 days have passed since sentencing and petitioner's appellate counsel have not even commenced an initial review of his record of trial, despite petitioner's desire that they do so, petitioner is not being afforded an appellate review of his findings and sentence that comports with the requirements of Article 66 and Article 70; these rights must be recognized, enforced, and protected by the government, by the appellate attorneys, by the Court of Criminal Appeals, and by this Court; the right to a timely appellate review in the military justice system is no less important and no less a protection than its counterpart in the civilian criminal justice system; petitioner's case illustrates that nothing has been done so far to respect or ensure his right to timely review of his findings and sentence).

2002


United States v. Bigelow
, 57 MJ 64 (a 244-day delay between trial and the convening authority’s action was neither unexplained nor inordinate, given the unusual circumstances in this case, which included: that the trial participants were assigned to three different bases in three different countries in Europe; that the record was lengthy – four volumes, totaling 593 pages; and that, apparently from the number of times the military judge returned the record, the record contained numerous errors).


United States v. Tardif
, 57 MJ 219 (a Court of Criminal Appeals has authority under Article 66(c), UCMJ, 10 USC § 866(c), to grant appropriate relief for unreasonable and unexplained post-trial delays; this authority under Article 66(c) is distinct from the court’s authority under Article 59(a), UCMJ, 10 USC § 859(a), to overturn a finding or sentence “on the ground of an error of law”; and the court’s authority to grant relief under Article 66(c) does not require a predicate holding under Article 59(a) that the error materially prejudices the substantial rights of the accused).


(Court of Criminal Appeals has authority under Article 66(c) to grant relief for excessive post-trial delay without a showing of “actual prejudice” within the meaning of Article 59(a), if it deems relief appropriate under the circumstances).


(in addition to its determination that no legal error occurred within the meaning of Article 59(a), the Court of Criminal Appeals is required to determine what findings and sentence “should be approved,” based on all the facts and circumstances reflected in the record, including the unexplained and unreasonable post-trial delay).


(the Courts of Criminal Appeals have authority under Article 66(c) to tailor an appropriate remedy, if any is warranted, to the circumstances of cases involving unreasonable, unexplained post-trial delays).


(appellate relief under Article 66(c) should be viewed as the last recourse to vindicate, where appropriate, an appellant’s right to timely post-trial processing and appellate review).


2001

United States v. Williams, 55 MJ 302 (an unreasonable delay in the post-trial review process will be tested for prejudice; delay will not be tolerated if there is any indication that appellant was prejudiced as a result).

(even though action was taken 753 days after completion of trial, appellant was not prejudiced by any delay where appellant received his bargained-for protection against potential forfeitures so long as he was entitled to pay).


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