2021 (October Term)
United States v. Anderson, 82 M.J. 82 (claims challenging the due process right to a speedy post-trial review and appeal are reviewed by an appellate court de novo).
(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; additionally, the Due Process Clause guarantees a constitutional right to a timely review).
(in conducting a post-trial review of whether an appellant’s Article 66, UCMJ, and constitutional rights to timely review have been infringed, an appellate court evaluates the four factors set forth by the Supreme Court in Barker v. Wingo (407 US 514 (1972)) for assessing pretrial speedy trial issues: (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; an analysis requires determining which factors favor the government or the appellant and then balancing these factors; no single factor is dispositive, and absence of a given factor does not prevent finding a due process violation).
(post-trial review begins by determining whether there is a facially unreasonable delay sufficient to trigger a due process analysis; prior to US v. Moreno (63 MJ 129 (CAAF 2006)), this assessment was made purely on a case-by-case basis; however, in Moreno, definitive time frames were established that would trigger due process review; action of the convening authority must be taken within 120 days of the completion of the trial; appellate review by the CCA must be completed and a decision rendered within eighteen months of docketing before that court; the government can rebut the presumption of unreasonable delay by showing the delay was not unreasonable; once the due process inquiry is triggered, the length of delay is itself balanced with the other factors).
(amendments to the rules governing post-trial processing contained in the 2017 National Defense Authorization Act and RCM 1109–1112 of the 2019 Rules for Courts-Martial call into question the continued validity of the US v. Moreno (63 MJ 129 (CAAF 2006)), time lines; however, because appellant’s charges in this case were referred prior to the effective dates of these amendments, this issue needed not to be addressed to resolve this appeal).
(in this case, the 481 days between the sentence being adjudged and the convening authority taking action was almost four times as long as the 120-day limit set by US v. Moreno (63 MJ 129 (CAAF 2006)) and was enough to trigger a due process analysis; this factor weighed in favor of appellant).
(under the reason for delay factor in determining whether an appellant’s due process right to speedy post-trial review was violated, an appellate court looks at how much of the delay was under the government’s control, and also assesses any legitimate reasons for the delay, including those attributable to an appellant).
(in this case, where the government was unable to provide any particularized reason for the 481-day delay between the sentence and the convening authority’s action, this factor weighed in favor of appellant).
(where an appellant has asserted his speedy post-trial right, it is entitled to strong evidentiary weight in determining whether appellant was deprived of the right).
(in this case, where appellant made three requests for speedy post-trial processing during the 481-day between the sentence and the convening authority’s action, this factor weighed in favor of appellant).
(prejudice due to post-trial delay is assessed in light of the potential impact on the appellate process; three interests should be considered: (1) prevention of oppressive incarceration pending appeal; (2) anxiety and concern; and (3) limiting the possibility that a convicted person’s grounds for appeal and defenses, in case of retrial, might be impaired)
(in considering the prejudice factor of whether the due process right to speedy post-trial review was violated, the anxiety and concern subfactor involves constitutionally cognizable anxiety that arises from excessive delay and requires an appellant to show particularized anxiety or concern that is distinguishable from the normal anxiety experienced by prisoners awaiting an appellate decision).
(in this case, although appellant claimed prejudice in the form of heightened anxiety and concern because he could have been considered for both clemency and parole at an earlier date had his case been processed in a timely manner, there was no evidence of such particularized heightened anxiety where the likelihood of receiving parole or clemency is highly speculative and there is no indication appellant would have been granted either at the earliest possible date; the uncertainty of any possible impact of the delay here—maybe he could have been paroled earlier and maybe he could have merited clemency—does not raise evidence substantial enough to establish prejudice; this factor weighed in favor of the government).
(where there is no finding of prejudice, a due process speedy post-trial delay violation only occurs when, in balancing the three other 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 481 days between the sentence being adjudged and the convening authority taking action was not severe enough to taint public perception of the military justice system where (1) it did not involve years of post-trial delay, (2) there was no indication of bad faith on the part of any of the government actors, and (3) there was also no indication of prejudice).
(although the 481-day post-trial delay between the sentence and the convening authority’s action was lengthy enough to trigger a due process review, it resulted in no prejudice to appellant, nor did it threaten the public’s trust in the fairness and integrity of the military justice system; therefore, no due process violation occurred).
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).
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
(in those cases where the
record does not
reflect Barker [407
(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).
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. 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).