The issue of post-trial delay and prejudice is on the front burner again as a result of CAAF’s decision in United States v. Bush.
Here is a repeat of part of a post of mine from April 2008.
1. After trial — sit down with the client and explain the post-trial process specific to the case. This is critical because the boilerplate post-trial advice given by the military defense and military judge is just that, generic non-specific advice.
a. Discuss with the client the specific issues of clemency and parole and how they can enhance their chance at parole. This should be an add-on to the advice about R.C.M. 1106-06.
b. Discuss with the client the "post-trial diary." Like the pre-trial diary, the post-trial diary is a chronological log of events that may help get clemency, parole, or appellate relief.
c. Advise the client to keep a specific record of any time after going on appellate leave they feel prejudiced by not having a DD214. The client should immediately bring this to the attention of the trial defense counsel Remember, under United States v. Palenius, 2 M.J. 86 (C.M.A. 1977), you remain trial defense counsel until you are released by the client, released by an appellate court, or replaced by the assigned appellate counsel. This means that for the one, two, or three years before the case is docketed you are still the counsel, despite the PCS or the move to be a prosecutor, etc. This is a point I believe is missed, but is required by Palenius. I would encourage reviewing Palenius as the "bible" of post-trial representational procedure and responsibility.
d. I’m to the point where I think it’s advisable to give the client some sort of "advice" letter on the post-trial delay issue.
e. If the client does encounter "prejudice" post-trial, you and the client will have to take aggressive steps to document through letters and affidavits. It’s easier to do that when the problem happens, rather than later.
2. On day 90 or 120 (I don’t have a preference here) after trial when you haven’t received a record of trial you should file a Motion for a Post-Trial Article 39(a), UCMJ, session. There is no question that the military judge retains control of a case where the record of trial is yet to be authenticated, and that the military judge can hold such a session under R.C.M. 1102.
a. The purpose is to ask for post-trial release from post-trial confinement pending appeal, additional credit for post-trial confinement due to delay, and a court ordered date certain to have the record of trial delivered to the military judge.
b. Isn’t that a waste of time you ask? In every case I have done this the military judge has given the prosecution a date certain, usually 30 days. In one case the military judge directed production of the record of trial within 30 days AND GAVE SIX MONTHS CREDIT against an eight year sentence to confinement based on the delay. Plus, you specifically address the Navy-Marine courts findings that the appellant ought to have demanded speedy review.
3. If you are not getting any response after four months, then it is time to file a petition for a writ of habeas corpus and mandamus. But this takes work? Yes it does, but after the first one it becomes much easier. Change the headings, update the law, and it’s done.
4. I understand there are cases (usually the married client) where the client is happy with the delay. The client’s family continues to get the all important medical benefits. That’s a judgment call and should be discussed with the client after trial.