U.S. v. Danylo, 73 M.J. 183

First Principles: Constitutional Matters: Right to a Speedy Trial

1. in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial
2. in the military, Sixth Amendment speedy trial protections are triggered upon preferral of charges or the imposition of pretrial restraint
3. in determining whether an appellant has been denied his right to a speedy trial under the Sixth Amendment, an appellate court considers the following factors: (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. unless the delay is facially unreasonable, the full due process Sixth Amendment speedy trial analysis will not be triggered
5. a delay of 116 days to bring appellant to trial after he entered pretrial confinement was not unreasonable for Sixth Amendment speedy trial purposes, where the delay was primarily due to the prosecution’s strategy of turning all four of the other alleged members of a drug ring into witnesses against appellant; such a delay in obtaining immunity for the witnesses was certainly not unusual or inappropriate and did not take an inordinate amount of time; furthermore, the government took that time to investigate the case, convene a pretrial confinement review hearing, prepare and obtain approval for the charges, and hold an Article 32 hearing
6. an unexplained delay of 170 days by the CCA to resolve the government’s Article 62, UCMJ, appeal of the military judge’s dismissal of charges against appellant while he remained in confinement was not unreasonable for Sixth Amendment speedy trial purposes, where, even though both parties had sought to expedite the processing of the appeal, fewer than six months elapsed between the government’s notice of appeal and the CCA’s decision and the Article 62 appellate process continued deliberately, though slowly
7. under the Sixth Amendment speedy trial test, there are three similar interests relevant to the prejudice analysis: (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; of these forms of prejudice, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system
8. a delay of 350 days to bring appellant to trial after he entered pretrial confinement did not prejudice appellant in violation of his Sixth Amendment right to a speedy trial; although appellant served two months of confinement beyond his adjudged sentence, and claimed that his confinement conditions caused him particularized anxiety and concern, he was credited with the pretrial confinement he served against his adjudged sentence, the confinement conditions were not unique to his case, some of his anxiety could be attributed to his own misconduct while in pretrial confinement, and there was no indication of any loss of evidence or impact to case preparation due to the delay
9. analysis of a Sixth Amendment speedy trial claim requires consideration of the entire period of delay from arrest (pretrial confinement) or preferral of charges until commencement of trial on the merits; that review spans a continuum of process from review by the convening authority under Article 60 to review by a CCA under Article 66 to review, in appropriate cases, by the CAAF under Article 67
10. military judge did not err in focusing on the delay caused by the government’s Article 62, UCMJ, appeal, rather than the total period of pretrial delay, in determining whether appellant’s Sixth Amendment right to a speedy trial was violated, where the CCA, by whose judgment the military judge was bound, had already ruled on the first portion and decided that there was no speedy trial issue in the pre-appeal delay

Trial Stages: Pretrial: Pretrial Confinement

1. pretrial confinement which exceeds an adjudged sentence is not per se prejudicial

Trial Stages: Writs and Interlocutory Appeals: Article 62 Appeal

1. Article 62(b), UCMJ, requires that an appeal by the government shall, whenever practicable, have priority over all other proceedings before that court
2. Article 62(c), UCMJ, provides that delays resulting from an appeal under Article 62 shall be excluded from speedy trial analysis unless an appropriate authority determines that the appeal was filed solely for the purpose of delay with the knowledge that it was totally frivolous and without merit; the Supreme Court gives Congress the highest deference in ordering military affairs under its constitutional mandate to make rules for the government and regulation of the land and naval Forces; nevertheless, Article 62(c) does not totally immunize the Courts of Criminal Appeals against judicial review of the timeliness of their decisions

Trial Stages: Appeals: Generally

1. the responsibility for providing the necessary resources for the proper functioning of the appellate system, including the Courts of Criminal Appeals, lies with the Judge Advocates General, who are required by Congress to establish those courts and, within the boundaries of judicial independence, to supervise them
2. all concerned with the military appellate system are expected to exercise the necessary institutional vigilance to ensure timely action on appeals, particularly those required by statute to be expedited

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. timely management and disposition of cases docketed at the Courts of Criminal Appeals is a responsibility of the Courts of Criminal Appeals
2. Article 62(b), UCMJ, requires that an appeal by the government shall, whenever practicable, have priority over all other proceedings before that court
3. Article 62(c), UCMJ, provides that delays resulting from an appeal under Article 62 shall be excluded from speedy trial analysis unless an appropriate authority determines that the appeal was filed solely for the purpose of delay with the knowledge that it was totally frivolous and without merit; the Supreme Court gives Congress the highest deference in ordering military affairs under its constitutional mandate to make rules for the government and regulation of the land and naval Forces; nevertheless, Article 62(c) does not totally immunize the Courts of Criminal Appeals against judicial review of the timeliness of their decisions

Trial Stages: Appeals: Court of Appeals for the Armed Forces

1. Article 62(b), UCMJ, requires that an appeal by the government shall, whenever practicable, have priority over all other proceedings before that court

Trial Stages: Appeals: Harmless / Prejudicial Error

1. pretrial confinement which exceeds an adjudged sentence is not per se prejudicial

Trial Stages: Appeals: Law of the Case

1. the law of the case doctrine states that a trial court is bound by the ruling of a higher appellate court remanding the case

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

1. an appellate court reviews de novo Sixth Amendment speedy trial issues
2. in analyzing an appellant’s speedy trial right, an appellate court gives substantial deference to the military judge’s findings of fact unless they are clearly erroneous
3. in determining whether an appellant has been denied his right to a speedy trial under the Sixth Amendment, an appellate court considers the following factors: (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: Generally

1. in calculating the number of days elapsed for a speedy trial claim, do not count the first day, but count the last day
2. in addition to the Sixth Amendment, Article 10, UCMJ, and the RCM 707 afford an accused a right to a speedy trial
3. Article 62(c), UCMJ, provides that delays resulting from an appeal under Article 62 shall be excluded from speedy trial analysis unless an appropriate authority determines that the appeal was filed solely for the purpose of delay with the knowledge that it was totally frivolous and without merit; the Supreme Court gives Congress the highest deference in ordering military affairs under its constitutional mandate to make rules for the government and regulation of the land and naval Forces; nevertheless, Article 62(c) does not totally immunize the Courts of Criminal Appeals against judicial review of the timeliness of their decisions
4. in conducting a speedy trial analysis, a court breaks down the periods of delay, analyzes the reasons for each, and may express concern with some but not other periods of delay

Miscellaneous Matters: Speedy Trial: Rule for Courts-Martial 707

1. RCM 707(a) provides that the accused shall be brought to trial within 120 days of the imposition of restraint

Miscellaneous Matters: Speedy Trial: Article 10

1. under Article 10, UCMJ, once an appellant is placed in pretrial confinement, the government is required to exercise reasonable diligence in bringing the accused to trial

Miscellaneous Matters: Speedy Trial: Sixth Amendment Right to a Speedy Trial

1. in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial
2. in the military, Sixth Amendment speedy trial protections are triggered upon preferral of charges or the imposition of pretrial restraint
3. in determining whether an appellant has been denied his right to a speedy trial under the Sixth Amendment, an appellate court considers the following factors: (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. unless the delay is facially unreasonable, the full due process Sixth Amendment speedy trial analysis will not be triggered
5. a delay of 116 days to bring appellant to trial after he entered pretrial confinement was not unreasonable for Sixth Amendment speedy trial purposes, where the delay was primarily due to the prosecution’s strategy of turning all four of the other alleged members of a drug ring into witnesses against appellant; such a delay in obtaining immunity for the witnesses was certainly not unusual or inappropriate and did not take an inordinate amount of time; furthermore, the government took that time to investigate the case, convene a pretrial confinement review hearing, prepare and obtain approval for the charges, and hold an Article 32 hearing
6. an unexplained delay of 170 days by the CCA to resolve the government’s Article 62, UCMJ, appeal of the military judge’s dismissal of charges against appellant while he remained in confinement was not unreasonable for Sixth Amendment speedy trial purposes, where, even though both parties had sought to expedite the processing of the appeal, fewer than six months elapsed between the government’s notice of appeal and the CCA’s decision and the Article 62 appellate process continued deliberately, though slowly
7. under the Sixth Amendment speedy trial test, there are three similar interests relevant to the prejudice analysis: (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; of these forms of prejudice, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system
8. a delay of 350 days to bring appellant to trial after he entered pretrial confinement did not prejudice appellant in violation of his Sixth Amendment right to a speedy trial; although appellant served two months of confinement beyond his adjudged sentence, and claimed that his confinement conditions caused him particularized anxiety and concern, he was credited with the pretrial confinement he served against his adjudged sentence, the confinement conditions were not unique to his case, some of his anxiety could be attributed to his own misconduct while in pretrial confinement, and there was no indication of any loss of evidence or impact to case preparation due to the delay
9. analysis of a Sixth Amendment speedy trial claim requires consideration of the entire period of delay from arrest (pretrial confinement) or preferral of charges until commencement of trial on the merits; that review spans a continuum of process from review by the convening authority under Article 60 to review by a CCA under Article 66 to review, in appropriate cases, by the CAAF under Article 67
10. military judge did not err in focusing on the delay caused by the government’s Article 62, UCMJ, appeal, rather than the total period of pretrial delay, in determining whether appellant’s Sixth Amendment right to a speedy trial was violated, where the CCA, by whose judgment the military judge was bound, had already ruled on the first portion and decided that there was no speedy trial issue in the pre-appeal delay