How much post-trial delay by the government is too much? Can I appeal this delay to the appellate courts?
After a servicemember is convicted at a court-martial, it can sometimes feel like he or she has to wait forever for it to become final. It does take a while following the adjournment of the court-martial for final action to be taken on the court-martial. This is because many things occur after the court-martial that can take time. For example, most records of trial have to be typed word for word, then both the government and defense counsel must review the record for errors. Additionally, the military judge in the court-martial must also review the record for errors. Next, the Staff Judge Advocate has to type out advice to the Convening Authority regarding his final action on the court-martial. The convicted servicemember then gets a chance to review the record of trial and the advice and provide a written response to all of it. Finally, the Convening Authority takes final action on the findings and the sentence of the court-martial. While these actions take time, they should not take an unreasonable amount of time. In 2006, in United States v. Moreno, the Court of Appeals for the Armed Forces (CAAF) 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. CAAF has also ruled in United States v. Collazo that sometimes depending on the circumstances, fundamental fairness warrants sentence relief for post-trial delay. Also, in United States v. Tardif, CAAF confirmed that U.C.M.J. Article 66(c) gives appellate courts a separate source of authority to provide relief absent prejudice in cases of unreasonable post-trial delay. In other words, relief may be granted for excessive post-trial delay even if there is no “actual prejudice” to the convicted servicemember. The appellate courts may be more likely to grant relief when the government has failed to explain why there was a delay and also when the Convening Authority fails to grant clemency based on the excessive delay. If you believe that the government is taking or took too long in processing your case after the trial, you may be entitled to relief. Sometimes this relief can be significant. Call me today. To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.