U.S. v. Merritt, 72 M.J. 483

First Principles: Constitutional Matters: Due Process

1. due process entitles convicted servicemembers to a timely review and appeal of court-martial convictions
2. as a matter of due process, a service member must have fair notice that his conduct is punishable before he can be charged under Article 134 with a service discrediting offense; such notice is found in the MCM, federal law, state law, military case law, military custom and usage, and military regulations

Core Criminal Law Subjects: Crimes: Art. 134 - Miscellaneous -- Clause 1, Clause 2, or Clause 3 Pre-2019 offenses

1. Article 134, UCMJ, the general article, criminalizes service-discrediting conduct by military service members; although certain specified offenses are included under this article, conduct that is not listed in the MCM may nonetheless constitute service discrediting conduct and may be used to allege the offense
2. as a matter of due process, a service member must have fair notice that his conduct is punishable before he can be charged under Article 134 with a service discrediting offense; such notice is found in the MCM, federal law, state law, military case law, military custom and usage, and military regulations
3. appellant did not have sufficient notice that the viewing of child pornography was subject to criminal sanction in 2006, as required for conviction under the general article, Article 134, UCMJ, for service discrediting conduct, where the viewing of child pornography was not criminalized under the UCMJ, the MCM, military custom or usage, the comprehensive federal statutes, federal or military court decisions, or the majority of state statutes; the fact that three states criminalized the conduct did not satisfy the constitutional requirement of fair notice

Trial Stages: Pretrial: Charges and Specifications

1. a servicemember must have fair notice that his conduct is punishable before he can be charged under Article 134 with a service discrediting offense

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

1. whether a military judge correctly understood and applied the proper legal principle in denying a motion to dismiss is a question that an appellate court reviews de novo
2. a four-factor test is employed to review claims of unreasonable post-trial delay, evaluating (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; once this 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

Miscellaneous Matters: Speedy Trial: Post-Trial

1. due process entitles convicted servicemembers to a timely review and appeal of court-martial convictions
2. a four-factor test is employed to review claims of unreasonable post-trial delay, evaluating (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; once this 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
3. unless the post-trial delay is facially unreasonable, the full due process analysis will not be triggered
4. if the constitutional due process inquiry for post-trial delay is triggered, the length of delay is itself balanced with the other factors and may, in extreme circumstances, give rise to a strong presumption of evidentiary prejudice affecting the fourth Barker v. Wingo, 467 US 514 (1972) factor; the length of delay calculation includes time caused by failures of appointed counsel and delays by the court itself
5. under the reasons-for-the-delay factor in a due process analysis of post-trial delay, an appellate court looks at the government’s responsibility for the delay, as well as any legitimate reasons for the delay, including those attributable to an appellant; the court will examine 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; however, the court will not attribute to individual appellants the periods of appellate delay resulting from military appellate defense counsels’ requests for enlargements of time where the basis for the request is excessive workload
6. under the prejudice factor in a due process analysis of post-trial delay, prejudice is assessed in light of the interests of those convicted of crimes to an appeal of their convictions unencumbered by excessive delay; there are 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 or her defenses in case of reversal and retrial, might be impaired
7. under the minimization of anxiety and concern subfactor of the prejudice factor in a due process analysis of post-trial delay, an appellant must 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 the appellate court to fashion relief in such a way as to compensate an appellant for the particular harm
8. although post-trial delay of 1,024 days between the docketing of appellant’s appeal at the CCA and the CCA’s decision was clearly facially unreasonable, appellant failed to show that he was legally prejudiced by the appellate delay where (1) appellant was represented on appeal by civilian counsel and his counsel requested seven enlargements of time that were granted by the CCA – all of which were appellate filing delays attributable to appellant, (2) appellant’s assertion of his right to timely post-trial review was not timely because it was asserted only after his counsel had requested seven enlargements, (3) although appellant’s substantive appeal was successful, he suffered no prejudice as the result of oppressive incarceration where because the dismissed offense at issue had been merged for sentencing with another, appellant’s sentence would have been unchanged and he had no fear of retrial, and (4) while appellant’s anxiety over sex offender registration was understandable, because he remains convicted of receiving child pornography, his registration requirement remains the same; consequently, appellant was not entitled to relief on the post-trial delay issue