U.S. v. Gosser, 64 M.J. 93

Trial Stages: Initial Review: Action

1. when there is surrounding documentation conflicting with the language of the convening authority’s action, this conflict presents an ambiguity that must be addressed; when addressing situations that present an ambiguity, the proper course of action is to remand for corrective action under RCM 1107(g); RCM 1107(g) empowers an authority acting under Article 66, UCMJ, to instruct a convening authority to issue a corrective action upon a showing of ambiguity; in this case, an ambiguity regarding whether the adjudged bad-conduct discharge had been disapproved, created by a conflict between the convening authority’s action and the surrounding documentation, warranted a remand by the court of criminal appeals to the convening authority for corrective action
2. under the unique facts of this case, a successor convening authority may issue an entirely new action in place of his predecessor when the original convening authority is unavailable to clarify his intent

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. when there is surrounding documentation conflicting with the language of the convening authority’s action, this conflict presents an ambiguity that must be addressed; when addressing situations that present an ambiguity, the proper course of action is to remand for corrective action under RCM 1107(g); RCM 1107(g) empowers an authority acting under Article 66, UCMJ, to instruct a convening authority to issue a corrective action upon a showing of ambiguity; in this case, an ambiguity regarding whether the adjudged bad-conduct discharge had been disapproved, created by a conflict between the convening authority’s action and the surrounding documentation, warranted a remand by the court of criminal appeals to the convening authority for corrective action

Trial Stages: Appeals: Harmless / Prejudicial Error

1. a two-year delay in commencing review under Article 66(c), UCMJ, that violated appellant’s right to due process was harmless beyond a reasonable doubt where there was no showing that appellant was prejudiced

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

1. the test for excessive post-trial delay looks at four Barker v. Wingo 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; a full due process analysis is triggered where the length of delay is facially unreasonable
2. where a due process error is one of constitutional magnitude, an appellate court is obliged to test this error for harmlessness; to rebut a showing of error, the government must show that the error was harmless beyond a reasonable doubt

Miscellaneous Matters: Speedy Trial: Post-Trial

1. the test for excessive post-trial delay looks at four Barker v. Wingo factors: (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; a full due process analysis is triggered where the length of delay is facially unreasonable
2. a delay of 548 days between sentencing and the convening authority’s initial action and an additional 141 days to transmit the record for docketing at the court of criminal appeals was facially unreasonable in commencing review under Article 66(c), triggering a due process analysis
3. appellant’s assertion of a right to speedy review is entitled to strong evidentiary weight in determining whether he was deprived of the right
4. in order to prevail on the question whether appellant was prejudiced by excessive post-trial delay, appellant must specifically identify how he was prejudiced due to the delay; mere speculation is not enough
5. assertions by appellant’s defense counsel in his post-trial clemency submissions to the convening authority that, because of the excessive delay in the post-trial processing, appellant was unable to produce the discharge documentation necessary to apply for college financial aid, failed to substantiate a claim of prejudice; there was no substantive evidence from persons with direct knowledge of the pertinent facts, nor was there adequate detail to give the government a fair opportunity to rebut the contention
6. despite the fact that appellant failed to show prejudice, a two-year delay in commencing review under Article 66(c), UCMJ, can diminish the public’s perception of the fairness of military justice; therefore, under the Barker-factor analysis in this case, appellant was denied his due process right to speedy review and appeal

Miscellaneous Matters: Speedy Trial: Post-Trial

1. a two-year delay in commencing review under Article 66(c), UCMJ, that violated appellant’s right to due process was harmless beyond a reasonable doubt where there was no showing that appellant was prejudiced