Toohey v. U.S., 60 M.J. 100

First Principles: Constitutional Matters: Due Process

1. the Due Process Clause guarantees a constitutional right to a timely review

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. the Courts of Criminal Appeals possess broad powers; they may issue relief upon a finding that lengthy delay following a court-martial conviction renders some portion of the findings or sentence inappropriate; even if it finds that the delay does not rise to the level of a prejudicial error of law, the Court of Criminal Appeals has the authority to nevertheless conclude that some form of relief is appropriate

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

1. we have recognized that where important facts necessary to resolve an issue are unavailable, a remand to the Court of Criminal Appeals to establish a factual record normally is required

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

1. this Court’s review of post-trial delay involves a determination of whether a prejudicial error of law has occurred

Miscellaneous Matters: Speedy Trial: Post-Trial

1. this Court has long recognized that an accused has the right to a timely review of his or her findings and sentence; this includes a right to a reasonably timely convening authority’s action, the reasonably prompt forwarding of the record of trial to the service’s appellate authorities, and reasonably timely consideration by the military appellate courts
2. a military appellant’s right to a full and fair review of his findings and sentence under Article 66 embodies a concomitant right to have that review conducted in a timely fashion; the Courts of Criminal Appeals’ unique powers and responsibilities call for, if anything, even greater diligence and timeliness than is found in the civilian system
3. federal courts generally consider four factors to determine whether appellate delay violates an appellant’s due process rights: (1) length of the delay; (2) reasons for the delay; (3) the appellant’s assertion of his right to a timely appeal; and (4) prejudice to the appellant
4. the length of delay factor plays two roles; first, the length of the delay is to some extent a triggering mechanism, and unless there is a period of delay that appears, on its face, to be unreasonable under the circumstances, there is no necessity for inquiry into the other factors that go into the balance; second, if the constitutional inquiry has been triggered, the length of delay is itself balanced with the other factors and may, in extreme circumstances, give rise to a strong presumption of evidentiary prejudice affecting the fourth factor
5. the first step in evaluating appellate delay is to determine whether the length of delay triggering mechanism has been pulled; this, in turn, requires us to consider a threshold question: How much delay is too much?; most courts evaluating such delay apply the first factor on a case-by-case basis; many factors can affect the reasonableness of appellate delay; these include not only such universal concerns as length of the record and complexity of the issues, but also military-unique considerations such as operational commitments that may delay transmission of the record to the Court of Criminal Appeals; these variables convince us that there is no talismanic number of years or months of appellate delay after which due process is automatically violated; whether appellate delay satisfies the first criterion is best determined on a case-by-case basis
6. in this case, petitioner has made a threshold showing of a period of appellate delay that appears, on its face, to be unreasonable under the circumstances where the aggregate delay is nearly six years from his conviction and sentence and where the government has not attempted to defend the pace of petitioner’s appeal
7. concluding that the aggregate delay in this case appears facially unreasonable is merely the beginning of the due process analysis; the optimal resolution of this petition for extraordinary relief is to provide the Court of Criminal Appeals, in the first instance, with the task of evaluating the four appellate delay factors to determine whether a Fifth Amendment due process violation has occurred and, if so, to determine an appropriate remedy