Post-trial delay

A convicted servicemember has the statutory and constitutional right to speedy review of their court-martial conviction. Unfortunately, the appellate cases show consistent problems in getting a record of the trial from the field to the court of criminal appeals. Here is a recent example.

In United States v. Lathrop, the Army Court of Criminal Appeals granted the Appellant 30 days confinement credit for such delay.

ACCA gives one month of sentence relief for a 211-day delay. The concurring judge would have also given the credit for a due process violation and would have granted 98 days of sentence relief versus the one-month granted. The prosecution is required to explain any delays in mailing the record of trial. Most of them are because of long periods of time while the verbatim transcript of the trial proceedings is typed up. This is a resources problem. In this case it appears that the post-trial memo was rather cursory, failed to account for the delay between 29 December 2023 and 5 April 2024, and (as the court said),

Until its certification, the one-volume ROT exhibits efficient, reasonable post-trial processing. However, reasonable diligence ended once the ROT was certified, and dilatory post-trial processing began. This ROT was certified on 29 December 2023, but not put in the mail until 5 April 2024. It took more than three months to mail the record—longer than it took to transcribe, authenticate, and certify it.​

Judge S., the partial dissent with, Said differently — considering the record sat certified for months, it is reasonable for the public to perceive the delay was done to ensure the government got its pound of flesh. Considering the government also benefits from agreements to plead guilty, this is troublesome from both an integrity and fairness standpoint.

Do you have such a situation. the military defense lawyers at Cave & Freeburg, LLP, have a process we use to try and get the record mailed promptly. We are having some success moving the bureaucracy along. There is no guarantee of success, but our process gives the Appellant a better opportunity on getting a sentence reduction than without it.

Note, your trial military defense counsel should be active in moving the record along, it is part of their post-trial duties in their representation of you. Unfortunately, the military defense counsel forget about your case and move on to their next one. Prod them to find out what is happening. Or email us, your (potential) military appellate defense counsel to discuss how we can try and help. You don’t want to be like a previous client who had to wait over 400 days before his case was mailed out to the appeals court.

Note, even if there is “unreasonable delay” the court doesn’t always give additional sentence credit. But we know how to ask and our pre-appeal process may help. For example, in a Coast Guard case,

United States v. Anderson, CGCCA, a GP to eight false claims, for which a RiR-E2 and a BCD was imposed. This is a post-trial delay case under the new rules.

We apply the conclusion we reached in United States v. Tucker, __ M.J. __ , slip op. at 26 (C.G.Ct.Crim.App. 7 Apr 2022): that Moreno’s use of the convening authority’s action as a terminal benchmark prior to docketing has been superseded by statute and regulation. As in Tucker, there was no presumptively unreasonable delay in this case. Further, even under a full due-process analysis, Appellant was not deprived of due process.

The court did however address the unreasonable delay analysis.

[W]e apply a presumption of unreasonable delay triggering a full due-process analysis when: (1) the record of trial is not docketed with this Court within a total of 150 days of the completion of trial; or (2) we do not complete appellate review and render a decision within eighteen months of docketing. Tucker, slip op. at 26.