Government is now responsible for defense extensive post-trial delay
After someone is convicted at a court-martial, there are many administrative tasks that take place. These tasks include the record of trial being typed and reviewed; the Convening Authority taking final action in the case; the case being docketed by the service appellate court; and finally the service appellate court making a decision. While these actions take time, they should not take an unreasonable amount of time. In 2006, the Court of Appeals for the Armed Forces (CAAF) in United States v. Moreno determined that if 120 days or more passed between the trial’s completion and convening authority’s action, the delay would be presumed unreasonable. CAAF also determined that if the case was not docketed with the service appellate court within 30 days after the convening authority’s action, the delay would be presumed unreasonable. Finally, CAAF determined that if the service appellate court did not render a decision within 18 months of the case being docketed, the delay would be presumed unreasonable. During the time between the court-martial’s completion and the convening authority’s action, the defense counsel who represents that convicted servicemember is given an opportunity to submit anything they would like the convening authority to consider prior to taking final action on the case. These are called R.C.M. 1105 matters. A defense counsel might submit, for example, letters of support from the convicted servicemember’s family with hopes of convincing the convening authority to sentence him to less than recommended by the court-martial panel or military judge. After the defense counsel is served with a draft of the Staff Judge Advocate’s written recommendation to the convening authority, the defense is given ten days to submit these R.C.M. 1105 matters. If the defense counsel asks for an extension in writing, they can receive an extra twenty days on top of the ten provided. In the past, the days that it takes the defense to submit these matters were not counted toward the government’s 120-day deadline created by CAAF in Moreno. However, recently in United States v. Banks, the Army Court of Criminal Appeals (ACCA) made a decision that changes this. In Banks, ACCA held that the initial ten days provided to the defense to submit R.C.M. 1105 matters is part of the government’s 120-day clock created in Moreno. This court held that the defense is only accountable for the twenty day extension, if they choose to request it. In Banks, the government had allowed the defense more than just the thirty days to submit their R.C.M. 1105 matters. In that case, 440 days passed after the court-martial completion and the convening authority’s action. Out of these 440 days, 153 of them were days that the government waited for the defense to submit their R.C.M. 1105 matters. Instead of blaming the defense for those days, ACCA determined that the government is responsible for all of this delay except for the twenty-day extension that the defense asked for. Following this decision, the government will likely stop providing defense extra time to complete the R.C.M. 1105 matters. Therefore, you must have a defense counsel who is aware of the deadlines and gets your matters submitted on time. Additionally, if you or your loved one faced significant delay after the court-martial completion, there may be a valid appeal even if a lot of this delay was spent waiting on the defense to submit R.C.M. 1105 matters. If you feel this may be true in your case, call me so we can discuss your appeal based on post-trial delay. To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.