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Right to counsel and continuances
In Weisbeck, the Court of Appeals for the Armed Forces addressed the question of a delay in trial after the accused hired a civilian counsel. This is a case your military defense counsel should be aware of. The case does not hold that a delay is automatic, but it does outline how an accused may make arguments in his favor.
An important point is what happens when the prosecution wants to offer evidence under Mil. R. Evid. 404(b), and the defense needs time to investigate and respond to that evidence.
United States v. Weisbeck, 50 M.J. 461 (C.A.A.F. 1999) — Summary
| Point | Key Facts |
|---|---|
| Prior Proceedings | In April 1994 a general court‑martial at Fort Devens, MA, tried Weisbeck for sexually assaulting two teenage brothers. Represented by civilian counsel (Michael J. Coughlin) and assisted by psychiatrist Dr. Edwin J. Mikkelsen, the defense convinced the panel the boys fabricated the charges; Weisbeck was acquitted. |
| Current Charges | In July 1995 the Government preferred new charges at Fort Rucker, AL, alleging similar assaults against two other adolescent brothers (“the Rucker boys”). |
| Prosecution Strategy | The Government moved, under Mil. R. Evid. 404(b), to call the Devens brothers to prove a common modus operandi. |
| Defense Response | Defense sought to exclude that evidence and, if it came in, requested a continuance to recall Dr. Mikkelsen to impeach both sets of accusers. |
| Rulings Below | The military judge announced he was “inclined to admit” the Devens boys’ testimony, denied three separate defense motions for a short continuance (six weeks) to secure Dr. Mikkelsen, and proceeded to trial on 29 Nov 1995 without the expert. Weisbeck was convicted of two specifications. |
| Army CCA | Affirmed the two specifications (48 M.J. 573). |
Legal Framework
- Continuances
Article 40, UCMJ and RCM 906(b)(1) give the military judge discretion to grant continuances for “reasonable cause.” Abuse of that discretion occurs when a party is arbitrarily denied a substantial defense right. The Court of Appeals for the Armed Forces (CAAF) evaluates eleven non‑exclusive Miller factors (surprise, timeliness, prejudice, etc.). United States v. Miller, 47 M.J. 352, 358 (C.A.A.F. 1997). AF Court of AppealsPhilip D. Cave - Expert Assistance
RCM 703(d) codifies the equal right to obtain expert witnesses. When an expert goes “to the heart of the defense,” denial of reasonable efforts to secure that witness can violate due‑process guarantees. United States v. Vanderwier, 25 M.J. 263 (C.M.A. 1987); United States v. Cokeley, 22 M.J. 225 (C.M.A. 1986). - Standard of Review
A military judge abuses discretion where the ruling is “clearly untenable” and deprives a party of a substantial right. Weisbeck, 50 M.J. at 464 (quoting Miller). AF Court of Appeals
Appellate Analysis
| Miller Factor | Court’s Finding |
|---|---|
| Surprise | None—defense asked for delay as soon as the judge announced intent to admit the Devens boys. |
| Nature of Evidence | Dr. Mikkelsen’s testimony was central; no transcript or substitute existed. |
| Timeliness | Continuance motion filed 9 days before trial after counsel’s formal entry of appearance. |
| Substitute | Government offered none; video teleconference was infeasible. |
| Witness Availability | Dr. Mikkelsen was available six weeks later. |
| Length of Delay | < 6 weeks—modest for a contested general court‑martial. |
| Prejudice to Government | Government alleged none. |
| Diligence / Good Faith | Defense requested records promptly; Government produced them < 1 week before trial. |
Eight of eleven factors favored a continuance; none favored denial. The judge’s sole articulated reason was “expeditious processing,” an “unreasonable and arbitrary insistence upon expeditiousness” condemned by the First Circuit in United States v. Soldevila‑Lopez, 17 F.3d 480, 487 (1st Cir. 1994). Justia Law
Holding
CAAF held the military judge abused his discretion by denying the continuance and thereby deprived the accused of both:
- the right to present critically relevant expert testimony, and
- meaningful opportunity to rebut powerful 404(b) propensity evidence.
It reversed the Army CCA, set aside the findings and sentence, and authorized a rehearing. Weisbeck, 50 M.J. 461. Philip D. Cave
Practical Significance and Commentary
- Continuances are not favors. Where an expert witness is indispensable to testifying credibility, a modest delay is presumptively reasonable; denying it invites reversal.
- Link to 404(b). Admitting damaging “other acts” proof without affording the defense comparable time to marshal rebuttal experts skews the adversarial balance and undermines reliability of the fact‑finding process.
- Counsel’s Takeaway.
- Document diligence: file RCM 703(c)(2) production requests early; keep a paper trail showing government‑caused delays.
- Offer alternate formats (deposition, VTC) but make a record when they are infeasible.
- Cite Weisbeck and Miller when judges suggest “holding feet to the fire.”
- Judicial Guidance. Military judges should articulate on the record how each Miller factor cuts; silence or cursory treatment suggests arbitrariness and heightens appellate risk.
- Strategic Insight. When the prosecution relies on a distinctive modus operandi theory, consider counter‑experts who can debunk suggestibility, false‑memory, or fabrication motives—then lock in their availability before the government moves for 404(b) admission.
Bottom Line
Weisbeck underscores that speed cannot trump fairness. When an accused demonstrates that an identified expert is essential, reasonably available, and unopposed by legitimate government prejudice, denial of a brief continuance is not simply error—it is reversible abuse of discretion.