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The recent Coast Guard case outlines nicely for an accused and military defense counsel how an appellate court evaluates lengthy post-trial delay.

1. Governing Framework for Post‑Trial Delay

Courts evaluate post‑trial processing under two independent regimes:

What is the bottom line for a military defense counsel or accused who want to sever court-martial charges? Southworth is the leading military case on the subject.

Factual Synopsis

Appellant faced a single, joint general court‑martial for two sexual‑assault episodes committed on successive evenings, 5–6 August 1995. The first involved AL, an adult Navy sailor, in a barracks “group‑sex” setting; the second involved LP, a 13‑year‑old civilian dependent, in a storage shed at a base festival. Before trial the defense sought severance under Rule for Courts‑Martial (RCM) 906(b)(10), contending that joinder posed an undue “spillover” risk because evidence from one incident would be inadmissible at a separate trial on the other. The military judge denied severance but offered special findings and ultimately instructed members that each specification must “stand on its own.” The panel acquitted appellant of raping AL (convicting only of indecent assault, later set aside for factual insufficiency) and convicted him of raping LP. On appeal, appellant claimed that the AL evidence impermissibly bolstered the LP case and that the limiting instruction was inadequate.

In Weisbeck, the Court of Appeals for the Armed Forces addressed the question of a delay in trial after the accused hired a civilian counsel. This is a case your military defense counsel should be aware of. The case does not hold that a delay is automatic, but it does outline how an accused may make arguments in his favor.

An important point is what happens when the prosecution wants to offer evidence under Mil. R. Evid. 404(b), and the defense needs time to investigate and respond to that evidence.

United States v. Weisbeck, 50 M.J. 461 (C.A.A.F. 1999) — Summary

Here is a summary of an interesting article about how the Army FAP denies a servicemember of due process, and recommending changes.

We at Cave & Freeburg, have represented many servicemembers caught up in the FAP.

Executive Summary

In United States v. Gree

The appellant contends that the military judge erred in admitting evidence of uncharged acts occurring seventeen months after the charged offenses to establish a common plan or scheme. He argues that this evidence was improperly admitted under Military Rule of Evidence (M.R.E.) 404(b) and that the judge did not conduct a proper M.R.E. 403 balancing test. Additionally, he asserts that the Air Force Court of Criminal Appeals (AFCCA) improperly substituted its reasoning by finding the evidence probative of wrongfulness and intent.

A. M.R.E. 404(b) Evidence

The “Don’t Ask, Don’t Tell” (DADT) policy, enacted in 1993 under President Bill Clinton, represented a compromise allowing gay, lesbian, and bisexual individuals to serve in the U.S. military provided they did not disclose their sexual orientation. This policy prohibited military personnel from discriminating against or harassing closeted service members but mandated discharge for those who openly acknowledged their homosexuality. While intended as a progressive step, DADT effectively institutionalized secrecy, leading to the discharge of thousands solely based on their sexual orientation.

The repeal of DADT in 2011 allowed LGBTQ+ individuals to serve openly. However, many veterans discharged under DADT or prior policies continued to face challenges due to “other than honorable” discharge statuses, which impeded access to military benefits and affected civilian employment opportunities. Their discharge paperwork often explicitly cited their sexual orientation as the reason for separation, perpetuating stigma and discrimination post-service.