Speed up post trial review — Court-Martial Trial Practice Blog

Have you been convicted at court-martial? Want a speedy review of your case for appeal?

There are two major roadblocks: (1) having the record of trial delivered to and docketed with the Air Force, Army, Coast Guard, or Navy-Marine Corps Court of Criminal Appeals and (2) the workload of the military appellate defense counsel. The roadblocks are, in my opinion, the Service Judge Advocate General’s fault in not assigning enough people to complete post-trial actions or work on the appeal promptly.

Immediately after the trial, there has to be a formal Entry of Judgment–which usually takes 30-45 days to complete. Then, the Government must prepare a full trial record forwarded to the appellate court and the military appellate defense lawyers who will work on the appeal. Here is where most of the delay can happen. These records take time to prepare–and too often, the Government takes an unreasonably long to do this. Records can take six to two years to get to the appellate court before the appellate defense counsel can get to work, and a decision comes from the court. We have a case right now where it took 412 days. The Navy-Marine Corps just decided on a case that took about ten years.

What can be done to unblock or avoid this inertia on the part of the Government? Too often, I think the local command doesn’t care. In their minds, the case is done, and the person has been convicted and jailed.

With this in mind, I have a protocol to follow, which, if it works, will get the case to the court quicker, and if not, either sentence credit or dismissal. Dismissal is what happened in the Navy case mentioned above. The most common result is sentence credit, which can be a month or several months.

If I am the civilian appellate defense counsel, my protocol has several stages starting immediately after the trial. This is the best opportunity to get results. If we are hired at this time, we would also begin evaluating the case for likely success on appeal and, if so, what issues to bring up to the court. We have not always been hired to do the entire appeal at this time, but there is a benefit to the client in being prepared to deal with the military lawyers.

After the initial involvement, the following stages for action are 90 days, then 150 days after the trial’s finish. Various filings can be made to the Government lawyer’s supervisors and ultimately to the court of criminal appeals.

The Due Process Clause of the Fifth Amendment to the United States Constitution, Article 66 of the Uniform Code of Military Justice, and various regulations provide the right to a speedy review of a conviction by a court of appeal. Based on the Supreme Court case of Barker v. Wingo, the courts evaluate whether there has been unreasonable delay. The appellant to show the delay is unexplained or unreasonable. Do you know if the delay is egregious? There are various reasons that the courts consider “acceptable.” And, there always is the issue of what prejudice the appellant has suffered. Part of the analysis is about what the person did to exert or claim a speedy review. That’s where my protocol comes in.

Military appellate courts have said that even if there is no due process violation, they still have some discretion to adjudge additional confinement credit without a “showing of prejudice.”