Military Appellate Law: Robust and Unique Protections for Servicemembers (Part IV)

In this blog series, I have discussed how servicemembers are protected by the two-tiered appellate system in the military (Part I).  I also explained that there are a few unique appellate issues that may be argued by military appellants.  In Part II of this series, I discussed the issue of ineffective assistance of counsel in detail.  In Part III of this series, I discussed the unique concept of Grostefon issues in military appellate law.  In Part IV of this series, I will discuss speedy post-trial protections in the military.

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.

Once appellant can show that the delay in their post-trial case is “presumed unreasonable,” government then has to attempt to rebut this presumption by accounting for the delay in detail and showing why it was not unreasonable under the particular circumstances of the case.  In rebutting the presumption, it typically will not be adequate for the government to justify the delay by simply showing that members of their prosecution team were deployed or that the office was understaffed for other reasons.  Rebutting the presumption of unreasonable delay is not an easy task for the government because the courts feel that the right to speedy post-trial processing is an extremely important right of an accused.

Recently, in United States v. Banks, a service appellate court decided to place even more of the burden involving post-trial delay on the government.  In Banks, the Army Court of Criminal Appeals (ACCA) made a significant determination regarding Rule for Court Martial (R.C.M.) 1105 (post-trial matters).  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 post-trial 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 Banks, the 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.

These speedy post-trial protections for the accused are unique in the military appellate system.  If you or your loved one is facing a court-martial or has faced a court-martial, your defense attorney needs to understand these rules and make sure that the government is abiding by the requirements.  Otherwise, your speedy post-trial processing rights may be ignored.  Further, if you or your loved one faced significant delay after the court-martial completion, there may be a valid appeal.  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.

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