U.S. v. Moreno, 63 M.J. 129

First Principles: Constitutional Matters: Due Process

1. due process entitles convicted servicemembers to a timely review and appeal of court-martial convictions

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. military judges must follow the liberal-grant mandate in ruling on challenges for cause” asserted by an accused; the liberal grant mandate recognizes the unique nature of military courts-martial panels, particularly that those bodies are detailed by convening authorities and that the accused has only one peremptory challenge

Military Justice Personnel: Court Members: Generally

1. an accused is entitled to a trial by members who are qualified, properly selected, and impartial
2. military judges must follow the liberal-grant mandate in ruling on challenges for cause asserted by an accused; the liberal grant mandate recognizes the unique nature of military courts-martial panels, particularly that those bodies are detailed by convening authorities and that the accused has only one peremptory challenge

Military Justice Personnel: Court Members: Challenges for Cause

1. implied bias under RCM 912(f)(1)(N) provides a basis for challenge when it appears an individual should not sit as a member in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality
2. the test for implied bias is objective; viewing the circumstances through the eyes of the public and focusing on the perception or appearance of fairness in the military justice system, the question asked is whether, despite a disclaimer of bias, most people in the same position as the court member would be prejudiced; considering a claim of implied bias, a court looks to determine whether there is too high a risk that the public will perceive that the accused received less than a court composed of fair, impartial, equal members
3. implied bias should be invoked sparingly
4. a military judge erred in not granting a challenge for cause based on implied bias against a member of the court-martial panel who became its president, where the member conducted an extensive personal, pretrial investigation of the case, weighed facts, made recommendations based on his conclusions, and continued to follow both the accused’s case and the case of his co-accused in the press, where an objective observer would have perceived that the member possessed an excessive level of pretrial knowledge of the case to sit as an impartial panel member, and where the member would exert influence over the other members arising from his personal knowledge of facts rather than from evidence presented in court; the presence of this member on the panel created a substantial doubt about the fairness and impartiality of the court-martial
5. a court does not accept as conclusive a challenged member’s perfunctory disclaimer of personal interest or his assertion of impartiality

Trial Stages: Appeals: Generally

1. the procedures used in deciding appeals must comport with the demands of the Due Process and Equal Protection Clauses of the Constitution

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. the timely management and disposition of cases docketed at the courts of criminal appeals is a responsibility of the courts of criminal appeals

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

1. an appellate court reviews rulings on challenges for implied bias under a standard that is less deferential than abuse of discretion, but more deferential than de novo review
2. in reviewing a ruling on a challenge for cause, an appellate court must remain mindful of the liberal grant mandate; the liberal grant mandate recognizes the unique nature of military courts-martial panels, particularly that those bodies are detailed by convening authorities and that the accused has only one peremptory challenge; an appellate court will overturn a military judge’s ruling on an accused’s challenge for cause where he clearly abuses his discretion in applying the liberal grant mandate
3. implied bias should be invoked sparingly; nevertheless, an appellate court is not reluctant to apply the doctrine to ensure the appearance of fairness in courts-martial
4. an appellate court reviews de novo claims that an appellant has been denied the due process right to a speedy post-trial review and appeal
5. in conducting a de novo review of post-trial delay due process claims, an appellate court uses the four factors set forth in Barker v. Wingo, 407 U.S. 514, 530 (1972): (1) the length of the delay; (2) the reasons for the delay; (3) the appellant’s assertion of the right to timely review and appeal; and (4) prejudice
6. once a post-trial delay due process analysis is triggered by a facially unreasonable delay, the four Barker factors are balanced, with no single factor being required to find that post-trial delay constitutes a due process violation; an appellate court analyzes each factor and makes a determination as to whether that factor favors the government or the appellant; the court then balances its analysis of the factors to determine whether there has been a due process violation; no single factor is required for finding a due process violation and the absence of a given factor will not prevent such a finding
7. unless a post-trial delay is facially unreasonable, a full due process analysis will not be triggered; an appellate court will conduct a case-by-case analysis to determine if a given delay is facially unreasonable
8. under the reasons-for-the-delay Barker factor, an appellate court looks at the government’s responsibility for any delay, as well as any legitimate reasons for the delay, including those attributable to an appellant; in assessing the reasons for any particular delay, an appellate court examines each stage of the post-trial period because the reasons for the delay may be different at each stage and different parties are responsible for the timely completion of each segment
9. a more flexible review of post-trial delay occasioned during the period from the submission of final briefs to the decision of the court of criminal appeals is applied where the exercise of the judicial decision-making authority of a court of criminal appeals is involved
10. the government bears responsibility for unreasonable delay during appeal occasioned by the workload of appellate defense counsel
11. in the case of appellate delay, prejudice should be assessed by considering three similar interests for prompt appeals: (1) prevention of oppressive incarceration pending appeal; (2) minimization of anxiety and concern of those convicted awaiting the outcome of their appeals; and (3) limitation of the possibility that a convicted person’s grounds for appeal, and his defenses in case of reversal and retrial, might be impaired
12. the oppressive-incarceration-pending-appeal interest for prompt appeals is directly related to the success or failure of an appellant’s substantive appeal; if the substantive grounds for the appeal are not meritorious, an appellant is in no worse position due to the delay, even though it may have been excessive; under these circumstances, an appellant would have served the same period of incarceration regardless of the delay; however, if an appellant’s substantive appeal is meritorious and the appellant has been incarcerated during the appeal period, the incarceration may have been oppressive
13. the anxiety-and-concern interest in prompt appeals involves constitutionally cognizable anxiety that arises from excessive delay; the appropriate test for the military justice system is to require an appellant to show particularized anxiety or concern that is distinguishable from the normal anxiety experienced by prisoners awaiting an appellate decision; this particularized anxiety or concern is thus related to the timeliness of the appeal, requires an appellant to demonstrate a nexus to the processing of his appellate review, and ultimately assists this court to fashion relief in such a way as to compensate an appellant for the particular harm; the anxiety that an appellant may experience is not dependent upon whether his substantive appeal is ultimately successful; an appellant may suffer constitutionally cognizable anxiety regardless of the outcome of his appeal
14. the impairment-of-ability-to-present-a-defense-at-a-rehearing interest in prompt appeals is directly related to whether an appellant has been successful on a substantive issue of the appeal and whether a rehearing has been authorized; if an appellant does not have a meritorious appeal, there obviously will be no prejudice arising from a rehearing; if, however, a conviction has been set aside and a rehearing authorized, the appellate delay encountered by the appellant may have a negative impact on his ability to prepare and present his defense at the rehearing; due to the passage of time, witnesses may be unavailable, memories may have faded and records of trial may have been misplaced or lost; in order to prevail on this factor, an appellant must be able to specifically identify how he would be prejudiced at rehearing due to the delay; mere speculation is not enough
15. for courts-martial completed thirty days after May 11, 2006, CAAF will apply a presumption of unreasonable delay that will serve to trigger the Barker four-factor analysis where the action of the convening authority is not taken within 120 days of the completion of trial; CAAF will apply a similar presumption of unreasonable delay for courts-martial completed thirty days after May 11, 2006, where the record of trial is not docketed by the service court of criminal appeals within thirty days of the convening authority’s action
16. for those cases arriving at the service courts of criminal appeals thirty days after May 11, 2006, CAAF will apply a presumption of unreasonable delay where appellate review is not completed and a decision is not rendered within eighteen months of docketing the case before the court of criminal appeals
17. the presumptions of unreasonable delay will be viewed as satisfying the first Barker factor and they will apply whether or not the appellant was sentenced to or serving confinement; it is important to note that the presumptions serve to trigger the four-part Barker analysis -- not resolve it; the government can rebut the presumption by showing the delay was not unreasonable; by using these presumptions, CAAF triggers an appellate analysis and allocates the burden
18. once the four-factor Barker analysis is completed and those factors balanced, reviewing authorities that find a denial of speedy post-trial or appeal should tailor an appropriate remedy, if any is warranted, to the circumstances of the case; the nature of that relief will depend on the circumstances of the case, the relief requested, and may include, but is not limited to: (a) day-for-day reduction in confinement or confinement credit; (b) reduction of forfeitures; (c) set aside of portions of an approved sentence including punitive discharges; (d) set aside of the entire sentence, leaving a sentence of no punishment; (e) a limitation upon the sentence that may be approved by a convening authority following a rehearing; and (f) dismissal of the charges and specifications with or without prejudice
19. those cases tried or received at a court of criminal appeals prior to May 11, 2006, and therefore not encompassed by the foregoing presumptions of unreasonable delay will continue to be reviewed on a case-by-case basis under the Barker due process analysis
20. dismissal of the charges with prejudice would be an option to address the denial of an appellant’s due process right to speedy review and appeal if the delay either impaired that appellant’s ability to defend against the charges at a rehearing or resulted in some other evidentiary prejudice

Miscellaneous Matters: Speedy Trial: Post-Trial

1. an appeal that is inordinately delayed is as much a meaningless ritual, as an appeal that is adjudicated without the benefit of effective counsel or a transcript of the trial court proceedings
2. servicemembers have a due process right to timely review and appeal of courts-martial convictions
3. post-trial delay of 1,688 days between completion of a court-martial and the decision of the court of criminal appeals is facially unreasonable, triggering the remaining Barker due process factors
4. the period of 490 days between the end of trial and the convening authority’s action was excessive for the post-trial processing of this case; the processing in this segment is completely within the control of the government and no exceptional circumstances were offered to explain this delay
5. the 76 days between the convening authority’s action and docketing the case before the court of criminal appeals is unexplained, and delays involving this essentially clerical task have been categorized as the least defensible of all post-trial delays
6. the accused could not be held accountable for the post-trial delay period of 925 days from which the case was docketed at the court of criminal appeals until the briefing was complete, even though the appellate defense counsel sought and was granted eighteen enlargements of time within which to file a brief, where the majority of the enlargements were sought because of “other cases load commitments,” and there was no evidence that counsel’s requests for delay benefited the accused or that the accused was consulted about and agreed to the delays
7. responsibility for the portion of post-trial delay occasioned by the appellate defense counsel’s caseload and the burden placed upon appellate defense counsel initially rests with the government; the government must provide adequate staffing within the appellate defense division to fulfill its responsibility under the UCMJ to provide competent and timely representation
8. a period of post-trial delay of slightly over six months from the submission of final briefs to the decision of the court of criminal appeals is not an unreasonable time for review by a court of criminal appeals; a more flexible review of this period is applied where the exercise of the judicial decision-making authority of a court of criminal appeals is involved
9. the failure of an accused to object to any post-trial delay or assert his right to timely review and appeal prior to his arrival at an appellate court did not weigh heavily against him in assessing whether the post-trial delay violated his right to due process where the obligation to ensure a timely review and action by the convening authority rested upon the government and the accused was not required to complain in order to receive a timely convening authority’s action; similarly, the accused bore no responsibility for transmitting the record of trial to the appellate court after action
10. requiring an accused to complain about appellate delay either to his appellate counsel who sought multiple enlargements of time because of other case commitments or to the appellate court that granted the enlargements on a routine basis is a paradox; while this factor weighs against an accused, the weight against him is slight given that the primary responsibility for speedy processing rests with the government and those to whom he could complain were the ones responsible for the delay
11. appellant showed constitutional anxiety that is distinguishable from the normal anxiety experienced by prisoners awaiting appeal, thus establishing that he had suffered some degree of prejudice from post-trial delay, where he was required to register as a sex offender upon his release from incarceration without the opportunity of having his appeal of right heard and decided
12. appellant was denied his due process right to speedy review and appeal because of the unreasonably lengthy post-trial delay of 1,688 days between the completion of his court-martial and the decision of the court of criminal appeals, the lack of any constitutionally justifiable reasons for the delay, and the prejudice suffered by him as a result of oppressive incarceration and anxiety
13. the unique nature of review under Article 66(c), UCMJ, calls for, if anything, even greater diligence and timeliness than is found in the civilian system
14. delays have been tolerated at all levels in the military justice system so much so that in many instances they are now considered the norm; the effect of this opinion is to provide notice that unreasonable delays that adversely impact an appellant’s due process rights will no longer be tolerated