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.

In support of the motion for leave to file writ-appeal petition out of time, Denedo’s counsel explained that he “erroneously believed that this case was governed by Rule 19(a)(1)(B),” which provides sixty days from the date of the decision at the CCA for filing a petition for review with this court. Appellate defense counsel requests this court suspend Rule 19(e) pursuant to our authority under C.A.A.F. Rule 33, which states “[f]or good cause shown, the Court may suspend any of these rules in a particular case, on application of a party or on its own motion, and may order proceedings in accordance with its direction.” In our view, neither the fact of the previous Supreme Court review of Denedo’s case, nor the Padilla case are relevant to our analysis as to whether there was good cause for a late filing. Counsel’s claim that he erroneously believed that this court imposed a sixty day deadline for the appeal of writ-appeal petitions does not provide us with the requisite good cause for suspending the deadline for filing a writ-appeal. Accordingly, it is ordered that Appellant’s motion for leave to file a writ-appeal petition out of time is hereby denied, and that Appellee’s motion to file an answer to the writ-appeal petition, motion to file untimely answer to Appellant’s motion for leave to file the writ-appeal out of time, and motion to withdraw are denied as moot.

Initially the case was sent back because appellant’s case was decided before his counsel submitted a brief, and because the chief judge on his panel had made some public comments relating to the case.

This time the case goes back because the chief judge also recommended his temporary successor for the Roach case, thus violating the principal that a recused judge should have no further contact with the case.

CAAF found appellant’s sentence disparity argument mooted by having the case returned to AFCCA on the first issue.

CAAF found appellant’s appellate discovery issue about the communications between the chief judge and appellate government moot.

CAAF found appellant’s post-trial speedy review issue in which he claimed malicious delay did not satisfy Barker.

The appeal was on a military judge declination to pre-admit a Lab Package in a urinalysis case. AFCCA had no trouble saying that a declination to pre-admit evidence is appealable. CAAF had no trouble correctly saying that AFCCA was wrong.

The prosecution proffered the standard lab package and told the military judge they’d produce an expert at trial to discuss the package. That basically was it. On that the military judge was supposed to pre-admit the package. Rather than pre-admit, the military judge told the prosecution that they’d need to produce witnesses and pull out some pages that might be pre-admitted separately. The prosecution then ‘threatened’ the military judge that they were going to appeal. Notably the military judge expressed an opinion that his “ruling” wasn’t appealable. And it appeared the military judge was going to hold the prosecution to its burden to produce actual, like real, evidence. Rather than produce evidence and testimony necessary to lay a foundation for the documents either in the motion or at trial, the prosecution, rather peevishly to my way of thinking, appealed.

I’m reminded of the Queen in Lewis Carroll’s, Alice in Wonderland, where she shouts, “off with his head,” or words to that effect about the prisoner at the bar. And Alice asks plaintively, “what about the trial.”

The military judge did not exclude the evidence, merely told the government that they’d not established a sufficient foundation to pre-admit evidence. The military judge basically told the prosecution what they needed to do. Rather than do what the military judge suggested, and present evidence, the prosecution appealed.

CAAF did not rule on the admissibility of the evidence should evidence and testimony be produced and did not rule on the Melendez-Diaz issue raised by the military judge. CAAF did footnote a pending decision in Blazier.

When the members returned, immediately after calling the court to order and accounting for the parties, the following colloquy ensued: MJ: Members, the bailiff indicated that you had a question? Colonel Meyer is shaking her head. MEMBER [Lieutenant Colonel (LTC) MEYER]: I am wondering, ma’am, if we can ask for additional witnesses to be called. MJ: The answer to that is, you’ve heard all of the evidence in the case. Neither party objected to the military judge’s ruling, or asked for additional information. The military judge then began her instructions to the members, followed by closing arguments of counsel.

Note Judge Leeker didn’t ask who they wanted to call and why. And neither counsel objected! At a minimum the counsel needed to object to the judge failing to at least inquire into the name and purpose. If the MJ does asks but denies the witness, there is at least some indication for argument about something troubling the members, and of course the issue is better preserved. In addition,

While the military judge may properly exercise his or her discretion and deny a member’s request for additional evidence, our superior court has set forth a non-exclusive list of factors the judge must consider prior to doing so. Difficulty in obtaining witnesses and concomitant delay; the materiality of the testimony that a witness could produce; the likelihood that the testimony sought might be subject to a claim of privilege; and the objections of the parties to reopening the evidence are among the factors trial judge must consider.

Trial defense counsel did track down the member and figure out what the issue was.

Neither side addressed the preliminary question of whether it is appropriate for this court to consider extra-record matters in this instance. We hold that the members’ request for additional evidence is not a collateral matter. As such, we will not consider the extra record appellate submissions concerning the identity of the witness the members wanted to request, as well as the proffered substance of that witness’ testimony in deciding this issue.

Although they did consider the matters on a Grosty IAC claim relating to the requested witness. The court takes the position that the submitted matters are extra-record and can’t be considered to :

to support or reverse a conviction . . . .” United States v. Bethea, 46 C.M.R. 223, 225 (C.M.A. 1973) (quoting United States v. Lanford, 20 C.M.R. 87, 95 (C.M.A. 1955); see also United States v. Stokes, 65 M.J. 651, 653-55 (Army Ct. Crim. App. 2007) and numerous cases cited therein.

But while the court does a good job of analyzing situations when post trial submissions may be extra-record but considered, they seem to miss the prejudice shown or not shown by the documents. Here the court found error, but then apparently ignored the extra-record documents when deciding the appellant had not been prejudiced.

This evidence was never put before the members and was not subject to cross-examination. See id. Accordingly, we will not consider it.

But isn’t that the point of a prejudice analysis? If the evidence had been presented could there have been a different result. Notably the court does seem to conclude that even had the evidence been introduced there would not have been a different result. They considered the matters in the Grosty IAC claim and determined there was no IAC, impliedly saying that the lack of the evidence was not prejudicial. Odd.

United States v. Thurston. This is another in the “new matter” column for post-trial SJAR’s addendum. Apparently the SJA included a chronology of post-trial events which was not served on the defense.

Each of the time periods provided in the chronology contained an attendant explanation. Included in the chronology was an explanation that: on 18 February 2009, the accused and his counsel had met with the convening authority; and from 1 April 2009 to 30 June 2009, had been spent coordinating with the family of the victim “on clemency for the accused.” As acknowledged in appellee’s brief, the two aforementioned events were not part of the record of trial. However, the addendum was never served on appellant or his defense counsel. Government appellate counsel also submitted a post-trial affidavit averring that the victim’s family did not recommend clemency for appellant. The affidavit details that the victim’s widower was opposed to clemency, as was the victim’s mother. The affidavit notes that the victim’s mother had “changed the position she had taken at the court-martial” and was now “adamantly” opposed to clemency for appellant.

Keep in mind that most SJA’s have a sit-down with the CA and discuss the case. So it’s quite likely the CA became aware of the victims change of heart about clemency. The appellate trend seems to dictate that any time the SJA is going to submit something to the CA after receiving the defense matters, it’s best to go ahead and serve the defense out of an excess of caution.

United States v. Kloch. This case addresses limitations a military judge may place on an accused’s unsworn statement on sentencing during his court-martial. The issue was discussion of results in co-accused’s cases. ACCA found the military judge erred in preventing such statements, but the error was not prejudicial. The case gives a decent review of the wide “discretion” allowed an accused to say what he or she wants during their unsworn statement, including otherwise inadmissible information.