U.S. v. Lazauskas, 62 M.J. 39

Miscellaneous Matters: Speedy Trial: Rule for Courts-Martial 707

1. (RCM 707 provides that the accused shall be brought to trial within 120 days after the imposition of restraint}
2. prior to referral of charges, all requests for pretrial delay will be submitted to the convening authority or to a military judge; after referral, such requests for pretrial delay will be submitted to the military judge for resolution
3. all pretrial delays approved by the convening authority are excludable so long as approving them was not an abuse of the convening authority’s discretion; it does not matter which party is responsible
4. prior to referral, the convening authority may delegate the authority to grant continuances to an Article 32 investigating officer; where, as here, the convening authority has delegated to an investigating officer the authority to grant any reasonably requested delays of the Article 32 investigation, then any delays approved by the Article 32 investigating officer also are excludable; thus, when an investigating officer has been delegated authority to grant delays, the period covered by the delay is excludable from the 120-day period under RCM 707
5. if the issue of speedy trial under RCM 707 is raised before the military judge at trial, the issue is not which party is responsible for the delay but whether the decision of the officer granting the delay was an abuse of discretion; the resolution under RCM 707 does not preclude a party from asserting responsibility for delay under Article 10, UCMJ, or the Constitution; it simply means that in the absence of an abuse of discretion by the officer granting the delay, there is no violation of RCM 707
6. the military judge did not abuse his discretion under RCM 707 in excluding from the 120-day speedy trial period a delay during the Article 32 investigation to obtain the personal testimony of witnesses who were on leave because the defense objected to taking their testimony over the telephone
7. the military judge did not abuse his discretion under RCM 707 in excluding from the 120-day speedy trial period a five-day period from the service of the referred charges until the expiration of the Article 35 waiting period, notwithstanding the accused’s contention that the Article 35 waiting period would have prohibited the government from bringing him to trial during that time, where the accused did not raise any Article 35 objection at the trial level; the five-day Article 35 period was neither requested nor necessary in this case to protect the accused