U.S. v. Tardif, 57 M.J. 219

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. a Court of Criminal Appeals has authority under Article 66(c), UCMJ, 10 USC § 866(c), to grant appropriate relief for unreasonable and unexplained post-trial delays; this authority under Article 66(c) is distinct from the court’s authority under Article 59(a), UCMJ, 10 USC § 859(a), to overturn a finding or sentence “on the ground of an error of law”; and the court’s authority to grant relief under Article 66(c) does not require a predicate holding under Article 59(a) that the error materially prejudices the substantial rights of the accused
2. a Court of Criminal Appeals has broad authority under Article 66(c) to review and modify sentences
3. the power and duty of a Court of Criminal Appeals to review sentence appropriateness under Article 66(c) is separate and distinct from its power and duty to review a sentence for legality under Article 59(a); Articles 59(a) and 66(c) “bracket” the authority of a Court of Criminal Appeals: Article 59(a) constrains the authority to reverse on the ground of an error of law; Article 66(c) is a broader, three-pronged constraint on the court’s authority to affirm
4. before it may affirm, the Court of Criminal Appeals must be satisfied that the findings and sentence are (1) “correct in law,” and (2) “correct in fact,” and which it “determines, on the basis of the entire record, should be approved” - the first prong pertains to errors of law and, as such, it also implicates Article 59(a); the second and third prongs do not involve errors of law and, thus, do not implicate Article 59(a)
5. Court of Criminal Appeals has authority under Article 66(c) to grant relief for excessive post-trial delay without a showing of “actual prejudice” within the meaning of Article 59(a), if it deems relief appropriate under the circumstances
6. in addition to its determination that no legal error occurred within the meaning of Article 59(a), the Court of Criminal Appeals is required to determine what findings and sentence “should be approved,” based on all the facts and circumstances reflected in the record, including the unexplained and unreasonable post-trial delay
7. the Courts of Criminal Appeals have authority under Article 66(c) to tailor an appropriate remedy, if any is warranted, to the circumstances of cases involving unreasonable, unexplained post-trial delays

Trial Stages: Appeals: Court of Appeals for the Armed Forces

1. in accordance with Article 67, Court of Appeals for the Armed Forces reviews the sentencing decisions of the Courts of Criminal Appeals for “obvious miscarriages of justice or abuses of discretion

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. (interpretation of Articles of the Uniform Code of Military Justice presents an issue of law, which is reviewed de novo). (in accordance with Article 67, Court of Appeals for the Armed Forces reviews the sentencing decisions of the Courts of Criminal Appeals for “obvious miscarriages of justice or abuses of discretion)

Miscellaneous Matters: Speedy Trial: Post-Trial

1. a Court of Criminal Appeals has authority under Article 66(c), UCMJ, 10 USC § 866(c), to grant appropriate relief for unreasonable and unexplained post-trial delays; this authority under Article 66(c) is distinct from the court’s authority under Article 59(a), UCMJ, 10 USC § 859(a), to overturn a finding or sentence “on the ground of an error of law”; and the court’s authority to grant relief under Article 66(c) does not require a predicate holding under Article 59(a) that the error materially prejudices the substantial rights of the accused
2. Court of Criminal Appeals has authority under Article 66(c) to grant relief for excessive post-trial delay without a showing of “actual prejudice” within the meaning of Article 59(a), if it deems relief appropriate under the circumstances
3. in addition to its determination that no legal error occurred within the meaning of Article 59(a), the Court of Criminal Appeals is required to determine what findings and sentence “should be approved,” based on all the facts and circumstances reflected in the record, including the unexplained and unreasonable post-trial delay
4. the Courts of Criminal Appeals have authority under Article 66(c) to tailor an appropriate remedy, if any is warranted, to the circumstances of cases involving unreasonable, unexplained post-trial delays
5. appellate relief under Article 66(c) should be viewed as the last recourse to vindicate, where appropriate, an appellant’s right to timely post-trial processing and appellate review