The first and most command barrier to you or your loved one getting a speedy appeal is the failure of the local command to promptly and properly prepare the record of trial and send it t0 the proper Court of Criminal Appeals.

At Cave & Freeburg, LLP, we have experience with this problem. As military defense counsel we have developed a process to help speed up getting the record of trial completed. The process has worked in some cases, but that’s not guarantee for every case.

Speedy post-trial processing and appeal in the military justice system refers to the requirement that post-trial actions, including the convening authority’s review, record of trial preparation, and appellate review, be handled without undue delay. This requirement ensures due process and fairness for service members convicted at court-martial. Delays in post-trial processing can raise due process concerns under the Fifth Amendment and the statutory rights established in the Uniform Code of Military Justice (UCMJ).

Key Cases and Legal Principles:

1. United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006)

In Moreno, the Court of Appeals for the Armed Forces (CAAF) established guidelines for assessing post-trial delay. The court set a presumption of unreasonable delay if:

• The convening authority does not act within 120 days after sentence adjudication.
• The record is not docketed with the appellate court within 30 days of convening authority action.
• A decision by the appellate court is not rendered within 18 months of docketing.

The Moreno court applied the balancing test from Barker v. Wingo, 407 U.S. 514 (1972) to determine whether delays violate due process. The factors include:

• The length of the delay.
• The reasons for the delay.
• The appellant’s assertion of the right to speedy processing.
• Prejudice suffered by the appellant.

The CAAF noted that excessive delay could result in relief, including sentence reduction or dismissal of charges if prejudice is shown.

2. United States v. Winfield, 83 M.J. 662 (A. Ct. Crim. App. 2023)

In Winfield, the Army Court of Criminal Appeals (ACCA) reinforced the principles from Moreno, applying them to a case where the appellant experienced excessive post-trial delay. The court found that significant delays in processing the record and appellate review required a full examination under the Barker v. Wingo test. The court emphasized that:

• Delays must be justified by legitimate reasons.
• Appellate courts will consider whether an appellant suffered prejudice due to delay.
• Even in the absence of actual prejudice, excessive delays can affect the public’s confidence in the military justice system.

3. Other Relevant Cases

• United States v. Toohey, 63 M.J. 353 (C.A.A.F. 2006) – The court found a due process violation when an appeal took over three years, despite the lack of prejudice to the appellant.
• United States v. Mackie, 66 M.J. 198 (C.A.A.F. 2008) – Confirmed that post-trial delays can still require relief even when no substantial prejudice is shown, based on the integrity of the military justice system.

Conclusion

The military justice system mandates speedy post-trial processing and appeal to uphold service members’ due process rights and ensure efficient administration of justice. Moreno remains the benchmark case, setting clear presumptive timelines and applying Barker v. Wingo to military cases. Cases like Winfield and Toohey demonstrate that excessive delays can warrant appellate relief, whether due to actual prejudice or broader concerns about fairness and public confidence.

The issues on appeal are: whether the staff judge advocate (SJA) erred by advising the convening authority (CA), pursuant to Rule for Courts-Martial (R.C.M.) 1106, that no new trial was warranted and whether the CA erred by failing to order a new trial despite the SJA’s acknowledgement that the appellant had presented new evidence that fell within the parameters of R.C.M. 1210. Further, the appellant filed a petition for a new trial pursuant to Article 73, UCMJ, 10 U.S.C. § 873.

AFCCA denied relief on the merits of the appeal and denied a new trial. AFCCA reasoned that even if the information was newly discovered (AFCCA was not certain it could not have been obtained during pretrial preparations), the evidence would not,

probably have resulted in “a substantially more favorable result for the accused.”

Apparently

Through the clemency process after trial, the trial defense counsel requested the CA set aside the conviction or grant a new trial. The request was based upon a statement, dated 8 April 2009, provided to the defense by TS, a co-worker of JH and TB. In this unsworn statement, TS indicated that TB had told her that what happened between the appellant and TB was not rape and had been consensual.