U.S. v. Cossio, 64 M.J. 254

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. military judges must be careful to restrict findings of fact to things, events, deeds, or circumstances that actually exist as distinguished from legal effect, consequence, or interpretation

Trial Stages: Writs and Interlocutory Appeals: Article 62 Appeal

1. when a case comes to a court of criminal appeals by way of a government appeal under Article 62, UCMJ, that court is limited to reviewing the military judge’s decision only with respect to matters of law; the court is bound by the military judge’s findings of fact unless they were clearly erroneous and that court could not find its own facts or substitute its own interpretation of the facts

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

1. an appellate court reviews de novo the question of whether an accused was denied his right to a speedy trial under Article 10, UCMJ, as a matter of law; and in an Article 62, UCMJ, appeal, that court is bound by the facts as found by the military judge unless those facts are clearly erroneous
2. in reviewing claims of a denial of a speedy trial under Article 10, UCMJ, an appellate court does not demand constant motion, but reasonable diligence in bringing the charges to trial; it inquires whether the government moved toward trial with reasonable diligence; brief inactivity is not fatal to an otherwise active, diligent prosecution
3. although Article 10, UCMJ, creates a more stringent speedy trial standard than the Sixth Amendment, the factors from Barker v. Wingo, 407 U.S. 514 (1972), are an apt structure for examining the facts and circumstances surrounding an alleged Article 10 violation; those factors are: (1) the length of the delay; (2) the reasons for the delay; (3) whether the appellant made a demand for a speedy trial; and (4) prejudice to the appellant

Miscellaneous Matters: Speedy Trial: Article 10

1. Article 10, UCMJ, ensures a servicemember’s right to a speedy trial by providing that upon arrest or confinement prior to trial, immediate steps shall be taken to inform him of the specific wrong of which he is accused and to try him or to dismiss the charges and release him
2. in reviewing claims of a denial of a speedy trial under Article 10, UCMJ, an appellate court does not demand constant motion, but reasonable diligence in bringing the charges to trial; it inquires whether the government moved toward trial with reasonable diligence; brief inactivity is not fatal to an otherwise active, diligent prosecution
3. although Article 10, UCMJ, creates a more stringent speedy trial standard than the Sixth Amendment, the factors from Barker v. Wingo, 407 U.S. 514 (1972), are an apt structure for examining the facts and circumstances surrounding an alleged Article 10 violation; those factors are: (1) the length of the delay; (2) the reasons for the delay; (3) whether the appellant made a demand for a speedy trial; and (4) prejudice to the appellant
4. the first factor under the Barker analysis is the length of the delay which 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; under the circumstances of this case, where the accused had made a timely demand for a speedy trial and had been in continuous pretrial confinement for 117 days when he moved for relief, the length of delay was sufficient to trigger the full Barker inquiry
5. the following test for prejudice has been established in the speedy trial context: prejudice, of course, should be assessed in the light of the interests of the accuseds which the speedy trial right was designed to protect; three such interests have been identified: (1) to prevent oppressive pretrial incarceration; (2) to minimize anxiety and concern of the accused; and (3) to limit the possibility that the defense will be impaired; of these, the most serious is the last, because the inability of an accused adequately to prepare his case skews the fairness of the entire system
6. although the accused made a demand for a speedy trial 23 days after he was apprehended, he was not denied his right to a speedy trial under Article 10, UCMJ, by the delay of 120 days spent in pretrial confinement prior to trial where the Government exercised reasonable diligence in bringing the charges to trial; even though the technical processing of the charges was not exemplary, the government has the right (if not the obligation) to thoroughly investigate a case before proceeding to trial; here, the record does not demonstrate that the forensic laboratory improperly prioritized or otherwise unreasonably delayed the forensic examination of the evidence, and there was no particularized prejudice; the government actually leaned forward by getting a trial date before it had the completed the forensic analysis or the report of investigation; it was not unreasonable for the Government to marshal and weigh all evidence, including forensic evidence, before proceeding to trial