U.S. v. Toohey, 63 M.J. 353

First Principles: Constitutional Matters: Due Process

1. convicted servicemembers have a constitutional due process right to a timely review and appeal of courts-martial convictions

Trial Stages: Appeals: Courts of Criminal Appeals › Sentence appropriateness

1. the court of criminal appeals abused its discretion by denying sentence appropriateness relief under Article 66(c), UCMJ, for unreasonable post-trial delay by requiring that a case rise to the level of “most extraordinary” before the court would consider exercising its unique Article 66(c), UCMJ, authority
2. a court of criminal appeals has the power to grant sentence relief under Article 66(c), UCMJ, where there has been unreasonable post-trial delay, and the exercise of that power does not require a finding of prejudice, nor are there any criteria limiting the exercise of that power to only the “most extraordinary” cases; the essential inquiry remains appropriateness in light of all circumstances, and no single predicate criteria of “most extraordinary” should be erected to foreclose application of Article 66(c), UCMJ, consideration or relief; moreover, the responsibility of the court of criminal appeals to affirm only so much of the sentence as should be approved does not implicate Article 59(a), UCMJ

Trial Stages: Appeals: Harmless / Prejudicial Error

1. the military judge’s error in preventing appellant from presenting evidence of his character for peacefulness did not deprive him of evidence that was material and favorable to his defense and thus was not of constitutional dimension requiring the utilization of the constitutional harmless beyond a reasonable doubt standard to test the effect of that error; this was not a case in which character evidence for peacefulness went to the heart of appellant’s core defense that the sexual activity between him and the victim was consensual
2. appellant was not prejudiced with respect to the assault charge by the military judge’s error in excluding character evidence for peacefulness, where the evidence of guilt was overwhelming and countered only by an implausible claim that the victim, a woman of far less physical stature than appellant, became aggressive and appellant responded in a reasonable manner to protect himself; appellant admitted that he struck the victim, and the excessive violence perpetrated upon the victim was graphically demonstrated by photographs depicting her injuries and the severity of the beating inflicted upon her
3. appellant was not prejudiced with respect to the rape charge by the military judge’s error in excluding character evidence for peacefulness, where the pivotal question on guilt was when appellant applied force and for what purpose, not whether he did so; appellant’s admission that he struck the victim minimized the materiality of character for peacefulness evidence; moreover, if character for peacefulness evidence might have had some slight value, appellant received that value when his ex-wife testified that he had never been violent with her
4. considering the egregious delay of over six years between the completion of the court-martial and the decision of the court of criminal appeals and the adverse impact such a delay has upon the public perception of fairness in the military justice system, the deprivation of appellant’s due process right to a speedy review and appeal was not harmless beyond a reasonable doubt

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

1. prior to affirming a case in which there has been constitutional error, an appellate court must be convinced beyond a reasonable doubt that the error was harmless
2. for nonconstitutional errors, the government bears the burden of showing that the error did not have a substantial influence on the findings
3. an appellate courts reviews the prejudicial effect of an erroneous evidentiary ruling de novo
4. a four-part test is applied to determine whether an error in excluding testimony had a substantial influence on the findings: (1) was the government’s case against appellant strong and conclusive; (2) is the defense’s theory of the case feeble or implausible; (3) what is the materiality of the proffered testimony; and (4) what is the quality of the proffered defense evidence and is there any substitute for it in the record of trial reversal is not required by the erroneous exclusion of evidence if the court determines that the finder of fact would not have been influenced by the omitted evidence).
5. an appellate court reviews de novo claims that appellant has been denied the due process right to a speedy post-trial review and appeal
6. where an appellate court finds constitutional error, it grants relief unless it court is convinced beyond a reasonable doubt that the constitutional error is harmless
7. a due process analysis of speedy post-trial review and appeal cases utilizes four Barker factors: (1) the length of the delay; (2) the reasons for the delay; (3) appellant’s assertion of the right to timely review and appeal; and (4) prejudice; once a due process analysis is triggered by a facially unreasonable delay, the four factors are balanced, with no single factor being required to find that post-trial delay constitutes a due process violation; each factor is analyzed and a determination is made as to whether that factor favors the government or appellant; an analysis of the factors is then balanced 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
8. the government bears the burden of demonstrating that a constitutional error is harmless beyond a reasonable doubt

Miscellaneous Matters: Speedy Trial: Post-Trial

1. convicted servicemembers have a constitutional due process right to a timely review and appeal of courts-martial convictions
2. a due process analysis of speedy post-trial review and appeal cases utilizes four Barker factors: (1) the length of the delay; (2) the reasons for the delay; (3) appellant’s assertion of the right to timely review and appeal; and (4) prejudice; once a due process analysis is triggered by a facially unreasonable delay, the four factors are balanced, with no single factor being required to find that post-trial delay constitutes a due process violation; each factor is analyzed and a determination is made as to whether that factor favors the government or appellant; an analysis of the factors is then balanced 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
3. an aggregate delay of 2,240 days between the completion of the court-martial and the decision of the court of criminal appeals is facially unreasonable, even for a serious contested case, triggering the four-factor due process analysis
4. where appellant has asserted his speedy trial right, it is entitled to strong evidentiary weight in determining whether he is being deprived of the right
5. the framework for analyzing prejudice under the fourth Barker factor considers three interests: (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 or her defenses in case of reversal and retrial, might be impaired; the oppressive incarceration pending appeal subfactor relates to the substantive merit of appellant’s grounds for appeal; the anxiety and concern subfactor involves constitutionally cognizable anxiety that arises from excessive delay - appellant is required to show particularized anxiety or concern that is distinguishable from the normal anxiety experienced by prisoners awaiting an appellate decision; and the final subfactor, impairment of the ability to present a defense at a rehearing, relates directly to whether an appeal on a distinct substantive issue is found to be meritorious and whether a rehearing has been authorized
6. where there is no finding of Barker prejudice, an appellate court will find a due process violation only when, in balancing the other three factors, the delay is so egregious that tolerating it would adversely affect the public’s perception of the fairness and integrity of the military justice system
7. a delay of 2,240 days between the completion of the court-martial and the decision of the court of criminal appeals violated appellant’s due process right to speedy review and appeal, notwithstanding the fact that appellant suffered no Barker prejudice from the delay; considering the first three factors weigh heavily in appellant’s favor - unreasonably lengthy delay, no justifiable reasons for the delay, and frequent assertion of the right to speedy review, the weight of these factors leads to the conclusion that the delay in appellant’s case is so egregious that tolerating it would adversely affect the public’s perception of the fairness and integrity of the military justice system