U.S. v. Cooley, 75 M.J. 247

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Trial Burdens, Standards › Generally

1. it is the government’s burden under Article 10, UCMJ, to show due diligence, and it is the government’s responsibility to provide evidence showing the actions necessitated and executed in a particular case justified delay when an accused was in pretrial confinement
2. under Article 10, UCMJ, outside of an explicit delay caused by the defense, the government bears the burden to demonstrate and explain reasonable diligence in moving its case forward in response to a motion to dismiss; this explanation must be a particularized showing of why the circumstances require the delay; unexplained periods of delay will weigh against the Government, but brief periods of inactivity in an otherwise active prosecution are not unreasonable or oppressive

Trial Stages: Appeals: Generally

1. an accused should not be prejudiced by the appellate review process
2. when speedy trial allegations involve several specifications, each specification must be considered separately

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

1. an appellate court reviews questions of statutory interpretation de novo
2. an appellate court reviews de novo the question of whether the accused was denied his right to a speedy trial under Article 10, UCMJ, as a matter of law; it is similarly bound by the facts as found by the military judge unless those facts are clearly erroneous; when speedy trial allegations involve several specifications, each specification must be considered separately
3. in examining reasonable diligence under Article 10, UCMJ, an appellate court must remain mindful that it is looking at the proceeding as a whole and not mere speed, and it gives substantial deference to the military judge’s findings of fact unless they are clearly erroneous

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

1. under RCM 707, the clear speedy trial trigger for offenses for which an accused is not confined is the date of preferral, and the clear trigger for offenses for which an accused is confined is the date of confinement, although the latter is also subject to the greater protection of Article 10, UCMJ
2. prior to the promulgation of RCM 707 in 1984, the “substantial information” rule provided that in the context of multiple charges arising during an accused’s confinement, government accountability for the speedy trial clock began to run when the government had in its possession substantial information on which to base the preference of charges; the judge-made substantial information rule now yields to RCM 707 and is overruled
3. RCM 707 does not void the additional protections of Article 10, UCMJ, when an accused is in pretrial confinement; the fact that a prosecution meets the 120-day rule of RCM 707 does not directly or indirectly demonstrate that the government moved to trial with reasonable diligence as required by Article 10
4. RCM 707 does not void the additional protections of Article 10, UCMJ, when an accused is in pretrial confinement; the fact that a prosecution meets the 120-day rule of RCM 707 does not directly or indirectly demonstrate that the government moved to trial with reasonable diligence as required by Article 10
5. in theory, the opportunity to dismiss charges without prejudice for violating RCM 707’s speedy trial clock offers an opportunity for endless delay; however, Article 10, UCMJ, is one protection to ensure that does not happen

Miscellaneous Matters: Speedy Trial: Article 10

1. pretrial confinement cannot serve as per se prejudice for purposes of determining a violation of Article 10, UCMJ
2. in this case, considering the factors set out in Barker v. Wingo (407 US 514(1972)) and applied to review of Article 10 by US v. Birge (52 MJ 209 (CAAF 1999)), the facts and circumstances of the accused’s case amounted to a violation of Article 10, UCMJ, where the record did not support the military judge’s findings of fact and conclusion that the government met its burden to show due diligence during the time period between the first dismissal of charges and the actual trial
3. Article 10, UCMJ, does not extend to an offense for which an appellant was not confined; Article 10, UCMJ, applies only to those charges for which an accused is arrested or confined; in other words, Article 10, UCMJ, protection applies only to charges related to actual confinement, and an accused’s speedy trial rights for all unrelated charges are still enforced under RCM 707 and the Sixth Amendment
4. by its own terms, Article 10, UCMJ, applies to arrest or confinement and requires that a person be tried or informed of the offenses for which he or she is confined; for Article 10, UCMJ, to apply, confinement must be related to specific charges; based on case law and its plain text, Article 10, UCMJ, does not apply to offenses for which an accused was neither arrested nor confined
5. with respect to how to define “in connection with confinement” for Article 10, UCMJ, purposes, military judges should look to the confinement order and related documents
6. under RCM 707, the clear speedy trial trigger for offenses for which an accused is not confined is the date of preferral, and the clear trigger for offenses for which an accused is confined is the date of confinement, although the latter is also subject to the greater protection of Article 10, UCMJ
7. because appellant was not confined for the possession of actual child pornography charge, Article 10, UCMJ, did not apply to that charge, and the CCA did not err in concluding that there was no Article 10, UCMJ, violation with respect to that offense
8. RCM 707 does not void the additional protections of Article 10, UCMJ, when an accused is in pretrial confinement; the fact that a prosecution meets the 120-day rule of RCM 707 does not directly or indirectly demonstrate that the government moved to trial with reasonable diligence as required by Article 10
9. in theory, the opportunity to dismiss charges without prejudice for violating RCM 707’s speedy trial clock offers an opportunity for endless delay; however, Article 10, UCMJ, is one protection to ensure that does not happen
10. the fact the government had substantial information about a charge, but declined to refer it until the first charges were dismissed for violating appellant’s speedy trial rights under RCM 707 is not irrelevant for purposes of determining whether there was a violation of Article 10, UCMJ, as to the charges for which appellant was actually confined; the government’s belated decision to prefer a charge it could have brought months earlier, occasioning an additional 135 days of delay, weighs heavily against the government in considering whether it proceeded with reasonable diligence for purposes of Article 10, UCMJ; while a dismissal under RCM 707 resets the speedy trial clock for its purposes, such dismissal is neither carte blanche for the government to overlook its obligation to proceed with reasonable diligence under Article 10, UCMJ, nor an invitation to take a second bite at perfecting a case and cause further delay based on information previously known to it; where an accused is in pretrial confinement, the government, having had charges dismissed without prejudice for violating RCM 707, may not take that as an invitation to start its charging decisions afresh based on information it had access to before the initial charges were referred and dismissed
11. Article 10, UCMJ, is a fundamental, substantial, personal right, and is a statutory protection intended to prevent soldiers from being put in the clink and held there for weeks, sometimes months, before being brought to trial; moreover, the right to a speedy trial under Article 10, UCMJ, is designed to ensure that the accused knows the reason for the restraint of his liberty, and to protect him, while under restraint, from unreasonable or oppressive delay in disposing of a charge of alleged wrongdoing, either by trial or by dismissal; Article 10, UCMJ, does not demand constant motion but does impose on the government the standard of reasonable diligence in bringing the charges to trial
12. in determining reasonable diligence for the purposes of Article 10, UCMJ, courts must conduct the four-factor analysis articulated in Barker v. Wingo (407 US 514(1972)) and applied to review of Article 10 by US v. Birge (52 MJ 209 (CAAF 1999)); the four factors assess (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; none of the four Barker factors alone are a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial
13. in examining reasonable diligence under Article 10, UCMJ, an appellate court must remain mindful that it is looking at the proceeding as a whole and not mere speed, and it gives substantial deference to the military judge’s findings of fact unless they are clearly erroneous
14. it is the government’s burden under Article 10, UCMJ, to show due diligence, and it is the government’s responsibility to provide evidence showing the actions necessitated and executed in a particular case justified delay when an accused was in pretrial confinement
15. with respect to the length of delay factor in determining reasonable diligence under Article 10, UCMJ, the particular circumstances of the case must be considered because the delay that can be tolerated for an ordinary street crime is considerably less than that for a serious, complex conspiracy charge; the length of the delay is a triggering mechanism and can be dispositive; however the analysis should include the seriousness of the offense, the complexity of the case, the availability of proof, and additional circumstances including whether an appellant was informed of the accusations against him, whether the government complied with procedures relating to pretrial confinement, and whether the government was responsive to requests for reconsideration of pretrial confinement
16. with respect to the reasons for the delay factor in determining reasonable diligence under Article 10, UCMJ, different weights should be assigned to different reasons; first, a deliberate effort by the government to delay the trial in order to hamper the defense weighs heavily against the government; more neutral reasons, such as negligence or overcrowded courts, also weigh against the government, although less heavily; a valid reason, such as a missing witness, should serve to justify appropriate delay; in addition, the government has the right, if not the obligation, to thoroughly investigate a case before proceeding to trial; in contrast, delay caused by the defense weighs against the defendant
17. under Article 10, UCMJ, outside of an explicit delay caused by the defense, the government bears the burden to demonstrate and explain reasonable diligence in moving its case forward in response to a motion to dismiss; this explanation must be a particularized showing of why the circumstances require the delay; unexplained periods of delay will weigh against the Government, but brief periods of inactivity in an otherwise active prosecution are not unreasonable or oppressive
18. with respect to the demand for speedy trial factor in determining reasonable diligence under Article 10, UCMJ, an accused’s assertion of his speedy trial right is entitled to strong evidentiary weight in determining whether he is deprived of the right
19. with respect to the prejudice factor in determining reasonable diligence under Article 10, UCMJ, given that Article 10, UCMJ, is triggered only when an accused is in pretrial confinement, the prejudice prong of the balancing test triggered by pretrial confinement requires something more than pretrial confinement alone; rather, prejudice should be assessed in the light of the interests of the accused which the speedy trial right was designed to protect; the three recognized interests of prejudice are (1) preventing oppressive pretrial incarceration, (2) minimizing anxiety and concern of the accused, and (3) limiting the possibility that the defense will be impaired; the inability of an accused to adequately prepare his case is the most serious interest to be considered when reviewing alleged speedy trial violations for prejudice because the inability of an accused adequately to prepare his case skews the fairness of the entire system
20. in this case, the 289 days of pretrial confinement before trial on the first charges was unreasonable where on the facts of the case (1) the length of the delay was unreasonable, (2) the government failed to meet its burden to provide particularized and appropriate reasons justifying the delay (i.e., there was nothing in the record supporting the reasons for the delay between May and October other than a belated decision to pursue a new charge that was not, in fact, new, and broad statements about the difficulty of the investigation and trial logistics), (3) the accused demanded a speedy trial on no fewer than five occasions, and (4) appellant was prejudiced, however slightly, because the government’s delay created a situation in which it appears appellant was hampered in his ability to present evidence in mitigation from a defense expert to explain the psychological issues bearing on appellant’s rehabilitative potential