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.

Coram nobis appeals are generally limited to situations where there is newly discovered evidence that was not available at the time of trial or sentencing or where there was a fundamental error in the original trial that has since been revealed. The appeal aims to correct errors that would have changed the outcome of the case if they had been known at the time of the original trial.

The jurisdiction for coram nobis appeals varies depending on the jurisdiction where the original conviction occurred. In some states, the appeals are filed in the same court that originally heard the case, while in other states, they are filed in a higher court. In federal court, coram nobis appeals are filed in the same court that originally heard the case, and the jurisdiction is determined by the location of that court. In courts-martial, a coram nobis petition is usually filed with the court of criminal appeals.

It’s worth noting that coram nobis appeals are generally considered to be a rare and extraordinary remedy, and they can be difficult to win.

Several factors are important.

• How soon after the conviction was final on appeal did the information become known?
• Once known, how quickly did you file a coram nobis petition?
• How significant is the evidence that it significantly impacted the fairness of the trial and verdict?

In civil law, there is a doctrine of laches. Courts will not hear a case if the person has waited too long to take legal action. While not a complete analogy–

Laches is a legal doctrine that bars a claim if it is brought too late, to the extent that the delay has prejudiced the opposing party. It is based on the idea that a person who unreasonably delays bringing a claim can be penalized since the delay may cause undue prejudice to the other party.

In order for laches to apply, the following elements must generally be present:

1. The party asserting the claim has unreasonably delayed in bringing it.
2. The delay has caused prejudice to the opposing party, such as by making it more difficult for them to defend against the claim or by causing them to rely on the belief that the claim would not be asserted.
3. The opposing party has acted in good faith during the period of delay.

Laches is commonly used as a defense in civil lawsuits, particularly in cases involving breach of contract, property disputes, and patent infringement. It is often raised when a plaintiff has waited an unreasonable amount of time to bring a claim, and the defendant has suffered harm as a result.

It’s worth noting that the application of laches can vary depending on the specific facts of the case and the jurisdiction in which the case is being heard. You can see then why criminal cases and their appeals can adopt the same analysis.

Denedo v. United States, 66 M.J. 114 (C.A.A.F. 2008) is an example of where the court decided that a claim of IAC was subject to coram nobis. That result is driven by the specific facts of the case.

Note that a petition for coram nobis is not the same as a petition for a new trial based on legal errors at the trial. Although like coram, the CAAF has said in United States v. Hull, 70 M.J. 145 (C.A.A.F. 2010), that “requests for a new trial, and thus rehearings and reopenings of trial proceedings, are generally disfavored, and are granted only if a manifest injustice would result absent a new trial, rehearing, or reopening based on proffered newly discovered evidence.”

It’s important to consult with an experienced military defense attorney to determine whether a coram nobis appeal is viable in a particular case.