U.S. v. Jones, 61 M.J. 80

First Principles: Constitutional Matters: Due Process

1. an appellant’s constitutional due process right to a speedy post-trial review is a right separate and distinct from the “sentence appropriateness” review under Article 66, UCMJ; determining whether post-trial delay violates an appellant’s due process rights turns on four factors: (1) the length of the delay; (2) the reasons for the delay, (3) the appellant’s assertion of the right to a timely appeal; and (4) prejudice to the appellant

Trial Stages: Appeals: Generally

1. this Court’s well-established approach to supplementing the factual record with affidavits while a case is on appeal is as follows: if the affidavit is factually adequate on its face to state a claim of legal error and the Government either does not contest the relevant facts or offers an affidavit that expressly agrees with those facts, the court can proceed to decide the legal issue on the basis of those uncontroverted facts; by considering such unrebutted declarations, the court is not engaging in factfinding; rather, it is applying the law to unrebutted facts contained within the record, which is a standard role of an appellate court

Trial Stages: Appeals: Harmless / Prejudicial Error

1. the same evidence that supports the due process test’s prejudice factor for unreasonable post-trial delay also demonstrates prejudice for purposes of Article 59(a), UCMJ.

Trial Stages: Appeals: Remedies › Generally

1. where a case involves a finding of legal error accompanied by Article 59(a) prejudice, this Court may order a remedy ourselves rather than remanding the case for that purpose; formulating such a remedy is an exercise of authority under Article 59(a) to eliminate material prejudice to appellant’s due process rights; it is entirely distinct from the lower court’s Article 66(c) sentence appropriateness powers
2. denial of the right to speedy trial results in dismissal of the charges only if reversible trial errors occurred and it is impossible to cure those errors at a rehearing because of the excessive post-trial delay
3. appellate courts are not limited to either tolerating the intolerable or giving an appellant a windfall; rather, in cases involving unreasonable post-trial delay, courts should tailor an appropriate remedy, if any is warranted, to the circumstances of the case
4. in this case, an appropriate remedy is to disapprove the bad-conduct discharge, where appellant pleaded guilty, and nothing that has occurred since trial has suggested that the findings were not accurate; setting aside the findings would be a windfall for appellant; setting aside the bad-conduct discharge is a remedy more proportionate to the prejudice that the unreasonable post-trial delay has caused; the post-trial delay has had an adverse effect on appellant’s ability to find employment; removing the bad-conduct discharge’s adverse effect on appellant’s employment opportunities may help to restore him to the position he would have been in had the post-trial review been accomplished with reasonable speed

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

1. whether appellant has established prejudice with respect to his right to a speedy post-trial review is a legal question subject to de novo review

Miscellaneous Matters: Speedy Trial: Post-Trial

1. where appellant’s trial lasted fifty-five minutes and resulted in a thirty-seven-page record of trial, and 363 days elapsed before the record was docketed with the lower appellate court, this unexplained post-trial delay was facially unreasonable
2. an appellant’s constitutional due process right to a speedy post-trial review is a right separate and distinct from the “sentence appropriateness” review under Article 66, UCMJ; determining whether post-trial delay violates an appellant’s due process rights turns on four factors: (1) the length of the delay; (2) the reasons for the delay, (3) the appellant’s assertion of the right to a timely appeal; and (4) prejudice to the appellant
3. the “length of delay” factor serves two functions: (1) the length of 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; (2) 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
4. in this case, the post-trial delay was facially unreasonable; the Government offered no justification for the appellate delay and the record failed to disclose any; the record reflected that appellant complained about the delay in post-trial processing; and the excessive post-trial delay prejudiced appellant by interfering with his post-military employment opportunities
5. interference with post-military employment opportunities is recognized as a form of prejudice that warrants relief for unreasonable post-trial delay
6. appellant demonstrated that unreasonable post-trial delay prejudiced him as a matter of law and violated his due process rights, where his own declaration and three unrebutted declarations from officials of a potential civilian employer indicated that he would have been considered for employment during period of delay or actually hired if he had possessed a discharge certificate, or DD-214
7. denial of the right to speedy trial results in dismissal of the charges only if reversible trial errors occurred and it is impossible to cure those errors at a rehearing because of the excessive post-trial delay
8. appellate courts are not limited to either tolerating the intolerable or giving an appellant a windfall; rather, in cases involving unreasonable post-trial delay, courts should tailor an appropriate remedy, if any is warranted, to the circumstances of the case
9. in this case, an appropriate remedy is to disapprove the bad-conduct discharge, where appellant pleaded guilty, and nothing that has occurred since trial has suggested that the findings were not accurate; setting aside the findings would be a windfall for appellant; setting aside the bad-conduct discharge is a remedy more proportionate to the prejudice that the unreasonable post-trial delay has caused; the post-trial delay has had an adverse effect on appellant’s ability to find employment; removing the bad-conduct discharge’s adverse effect on appellant’s employment opportunities may help to restore him to the position he would have been in had the post-trial review been accomplished with reasonable speed