U.S. v. Bush, 68 M.J. 96

First Principles: Constitutional Matters: Due Process

1. aside from structural errors which are not susceptible of analysis for harm, a constitutional error, such as a post-trial due process violation, must be harmless beyond a reasonable doubt before an appellate court can affirm the resultant conviction or sentence
2. where an appellant alleges a due process violation in a post-trial delay context, and where a due process violation is found, the analysis performed by an appellate court necessarily involves two separate prejudice determinations; the initial prejudice review occurs in evaluating the fourth Barker [407 US 514 (1972)] factor, which defines prejudice to include oppressive incarceration, undue anxiety, and limitation of the possibility that a convicted person’s grounds for appeal, and his defenses in case of reversal and retrial, might be impaired; if a due process violation is found after balancing the Barker factors, an appellate court determines whether, under the totality of the circumstances, the error is harmless beyond a reasonable doubt; that harmless beyond a reasonable doubt review necessarily involves a prejudice analysis, and although it involves a review of the same record, the scope and burden differ from the Barker prejudice analysis

Core Criminal Law Subjects: Evidence: Generally

1. post-trial submissions have no automatic value as evidence where they are not relevant or where they are not based upon personal knowledge of the declarant

Core Criminal Law Subjects: Evidence: Hearsay › Generally

1. post-trial submissions have no automatic value as evidence where they are not relevant or where they are not based upon personal knowledge of the declarant

Core Criminal Law Subjects: Evidence: Relevance

1. post-trial submissions have no automatic value as evidence where they are not relevant or where they are not based upon personal knowledge of the declarant

Trial Stages: Appeals: Harmless / Prejudicial Error

1. the determination of harmlessness for post-trial delay is different than that applied to constitutional trial errors; in the trial error arena, a determination of harmless beyond a reasonable doubt tests whether, beyond a reasonable doubt, the error did not contribute to the defendant’s conviction or sentence; in contrast, post-trial delays do not necessarily impact directly the findings or sentence; instead, an appellate court must review the record de novo to determine whether other prejudicial impact is present from the delay; unless the court concludes beyond a reasonable doubt that the delay generated no prejudicial impact, the government will have failed to attain its burden
2. under the totality of the circumstances and the entire record, violation of appellant’s due process right to speedy post-trial review by a delay of more than seven years from his court-martial to the docketing of his case in the court of criminal appeals was harmless beyond a reasonable doubt, where the record is bereft of any evidence of prejudice to appellant as a result of the delay; appellant’s declaration as to the reasons that a particular employer declined to hire him was not based on personal knowledge, and as such, his unsupported allegations of employment prejudice had no impact under the totality of the circumstances review

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

1. aside from structural errors which are not susceptible of analysis for harm, a constitutional error, such as a post-trial due process violation, must be harmless beyond a reasonable doubt before an appellate court can affirm the resultant conviction or sentence
2. it is solely the government’s burden to persuade an appellate court that constitutional error is harmless beyond a reasonable doubt
3. an appellate court reviews de novo both the determination of a post-trial delay due process violation and the question of whether such a violation is harmless beyond a reasonable doubt
4. the determination of harmlessness for post-trial delay is different than that applied to constitutional trial errors; in the trial error arena, a determination of harmless beyond a reasonable doubt tests whether, beyond a reasonable doubt, the error did not contribute to the defendant’s conviction or sentence; in contrast, post-trial delays do not necessarily impact directly the findings or sentence; instead, an appellate court must review the record de novo to determine whether other prejudicial impact is present from the delay; unless the court concludes beyond a reasonable doubt that the delay generated no prejudicial impact, the government will have failed to attain its burden
5. where there is a post-trial delay due process violation, the burden to show harmlessness beyond a reasonable doubt remains upon the government
6. an appellate court reviews the totality of the circumstances to determine whether a post-trial delay due process violation is harmless beyond a reasonable doubt
7. where an appellant alleges a due process violation in a post-trial delay context, and where a due process violation is found, the analysis performed by an appellate court necessarily involves two separate prejudice determinations; the initial prejudice review occurs in evaluating the fourth Barker [407 US 514 (1972)] factor, which defines prejudice to include oppressive incarceration, undue anxiety, and limitation of the possibility that a convicted person’s grounds for appeal, and his defenses in case of reversal and retrial, might be impaired; if a due process violation is found after balancing the Barker factors, an appellate court determines whether, under the totality of the circumstances, the error is harmless beyond a reasonable doubt; that harmless beyond a reasonable doubt review necessarily involves a prejudice analysis, and although it involves a review of the same record, the scope and burden differ from the Barker prejudice analysis
8. no single factor is required for finding a due process violation as a result of post-trial delay, and the absence of a given factor will not prevent such a finding
9. in a post-trial delay due process analysis, Barker [407 US 514 (1972)] factor four addresses specific prejudice to an appellant, not public perception; the public perception analysis is utilized in quantifying the appropriate weight that is to be given to Barker factors one (length of delay) and two (reasons for delay) when balancing all of the factors
10. post-trial submissions have no automatic value as evidence where they are not relevant or where they are not based upon personal knowledge of the declarant
11. with respect to determining whether an appellant meets his burden of demonstrating fourth-prong, Barker [407 US 514 (1972)] prejudice or with respect to reviewing the entire record to determine if a post-trial delay due process violation is harmless beyond a reasonable doubt, a reviewing court must first determine whether post-trial submissions merit consideration
12. in circumstances where a record establishes that an appellant has suffered Barker [407 US 514 (1972)] prejudice, the government’s burden to establish that the constitutional violation was harmless beyond a reasonable doubt may be difficult to attain
13. in those cases where the record does not reflect Barker [407 US 514 (1972)] prejudice, as a practical matter, the burden to establish harmlessness from the post-trial delay may be more easily attained by the government
14. at the totality-of-the-circumstances, harmless-error prejudice determination stage, there is no presumption of prejudice in cases where an appellate court has found a due process violation as a result of unreasonable post-trial delay in the absence of Barker [407 US 514 (1972)] prejudice; an appellate court does not presume prejudice based on the length of the delay alone

Miscellaneous Matters: Speedy Trial: Post-Trial

1. requiring an appellant, who asserts that his due process right to a speedy post-trial review was violated, to provide independent evidence to substantiate a claim that he was impaired in his ability to obtain employment as a result of post-trial delay does not conflict with Ginn [47 MJ 236 (CAAF 1996)], a case that recognizes that a court of criminal appeals’s factfinding authority under Article 66(c) does not extend to deciding disputed question of fact pertaining to a post-trial claim, solely or in part on the basis of conflicting affidavits; as a general matter, the principles of Ginn provide a workable framework for analyzing when post-trial issues framed by post-trial affidavits can be resolved without ordering a factfinding hearing under DuBay [17 CMA 147, 37 CMR 411 (1967)]; however, if substantive law places a burden of proof or persuasion on either party with respect to issues raised post-trial, Ginn and its progeny do not relieve that party of such a burden; nor does Ginn alter the fundamental requirement that a witness’s testimony be based upon personal knowledge
2. where an appellant claims that his due process right to a speedy post-trial review was violated, in order to establish prejudice under the fourth Barker [407 US 514 (1972)] factor on the grounds that post-trial delay impaired his ability to secure employment, an appellant must do something more than provide his own affidavit asserting that a specific employer declined to hire him because he lacked a DD Form 214; an appellant must provide corroborating evidence to support his claim of employment prejudice; in most cases, the appropriate source of information pertaining to the hiring decisions of a potential employer will be a representative of the potential employer itself
3. in the context of appellant’s claim of employment prejudice under the fourth Barker [407 US 514 (1972)] factor to support his claim that his due process right to a speedy post-trial review was violated, he failed to provide independent evidence to support his claim that lack of a DD Form 214 impaired his ability to secure employment and did not demonstrate a valid reason for not doing so; consequently, the fourth Barker factor is resolved against appellant before the question even arises as to whether, under Ginn [47 MJ 236 (CAAF 1996)], factual issues raised in his declaration could be resolved without a DuBay [17 CMA 147, 37 CMR 411 (1967)] hearing
4. the determination of harmlessness for post-trial delay is different than that applied to constitutional trial errors; in the trial error arena, a determination of harmless beyond a reasonable doubt tests whether, beyond a reasonable doubt, the error did not contribute to the defendant’s conviction or sentence; in contrast, post-trial delays do not necessarily impact directly the findings or sentence; instead, an appellate court must review the record de novo to determine whether other prejudicial impact is present from the delay; unless the court concludes beyond a reasonable doubt that the delay generated no prejudicial impact, the government will have failed to attain its burden
5. where there is a post-trial delay due process violation, the burden to show harmlessness beyond a reasonable doubt remains upon the government
6. an appellate court reviews the totality of the circumstances to determine whether a post-trial delay due process violation is harmless beyond a reasonable doubt
7. where an appellant alleges a due process violation in a post-trial delay context, and where a due process violation is found, the analysis performed by an appellate court necessarily involves two separate prejudice determinations; the initial prejudice review occurs in evaluating the fourth Barker [407 US 514 (1972)] factor, which defines prejudice to include oppressive incarceration, undue anxiety, and limitation of the possibility that a convicted person’s grounds for appeal, and his defenses in case of reversal and retrial, might be impaired; if a due process violation is found after balancing the Barker factors, an appellate court determines whether, under the totality of the circumstances, the error is harmless beyond a reasonable doubt; that harmless beyond a reasonable doubt review necessarily involves a prejudice analysis, and although it involves a review of the same record, the scope and burden differ from the Barker prejudice analysis
8. no single factor is required for finding a due process violation as a result of post-trial delay, and the absence of a given factor will not prevent such a finding
9. in a post-trial delay due process analysis, Barker [407 US 514 (1972)] factor four addresses specific prejudice to an appellant, not public perception; the public perception analysis is utilized in quantifying the appropriate weight that is to be given to Barker factors one (length of delay) and two (reasons for delay) when balancing all of the factors
10. with respect to determining whether an appellant meets his burden of demonstrating fourth-prong, Barker [407 US 514 (1972)] prejudice or with respect to reviewing the entire record to determine if a post-trial delay due process violation is harmless beyond a reasonable doubt, a reviewing court must first determine whether post-trial submissions merit consideration
11. in circumstances where a record establishes that an appellant has suffered Barker [407 US 514 (1972)] prejudice, the government’s burden to establish that the constitutional violation was harmless beyond a reasonable doubt may be difficult to attain
12. in those cases where the record does not reflect Barker [407 US 514 (1972)] prejudice, as a practical matter, the burden to establish harmlessness from the post-trial delay may be more easily attained by the government
13. at the totality-of-the-circumstances, harmless-error prejudice determination stage, there is no presumption of prejudice in cases where an appellate court has found a due process violation as a result of unreasonable post-trial delay in the absence of Barker [407 US 514 (1972)] prejudice; an appellate court does not presume prejudice based on the length of the delay alone
14. under the totality of the circumstances and the entire record, violation of appellant’s due process right to speedy post-trial review by a delay of more than seven years from his court-martial to the docketing of his case in the court of criminal appeals was harmless beyond a reasonable doubt, where the record was bereft of any evidence of prejudice to appellant as a result of the delay; appellant’s declaration as to the reasons that a particular employer declined to hire him was not based on personal knowledge, and as such, his unsupported allegations of employment prejudice had no impact under the totality of the circumstances review