U.S. v. Anderson, 82 M.J. 82

First Principles: Constitutional Matters: Due Process

1. the Due Process Clause guarantees to a military appellant a constitutional right to a timely post-trial review

Military Justice Personnel: Military Judge: Discretion

1. under MRE 201(b), a military judge may judicially notice a fact that is not subject to dispute because it is generally known or can be accurately determined from sources whose accuracy cannot reasonably be questioned

Trial Stages: Appeals: Generally

1. appellate courts can take judicial notice of law and fact just as a military judge can under MRE 201(b)
2. in this case, where the government asked an appellate court to take judicial notice of the operational tempo of appellant’s command to justify the military judge’s post-trial delay in authenticating the record of trial, the court declined to do so where the government provided no information that made indisputable the operational tempo of the command

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. a military appellant’s right to a full and fair review of his findings and sentence under Article 66 embodies a concomitant right to have that review conducted in a timely fashion; the Courts of Criminal Appeals’ unique powers and responsibilities call for, if anything, even greater diligence and timeliness than is found in the civilian system; additionally, the Due Process Clause guarantees a constitutional right to a timely review

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

1. claims challenging the due process right to a speedy post-trial review and appeal are reviewed by an appellate court de novo
2. in conducting a post-trial review of whether an appellant’s Article 66, UCMJ, and constitutional rights to timely review have been infringed, an appellate court evaluates the four factors set forth by the Supreme Court in Barker v. Wingo (407 US 514 (1972)) for assessing pretrial speedy trial issues: (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; an analysis requires determining which factors favor the government or the appellant and then balancing these factors; no single factor is dispositive, and absence of a given factor does not prevent finding a due process violation

Miscellaneous Matters: Speedy Trial: Post-Trial

1. claims challenging the due process right to a speedy post-trial review and appeal are reviewed by an appellate court de novo
2. a military appellant’s right to a full and fair review of his findings and sentence under Article 66 embodies a concomitant right to have that review conducted in a timely fashion; the Courts of Criminal Appeals’ unique powers and responsibilities call for, if anything, even greater diligence and timeliness than is found in the civilian system; additionally, the Due Process Clause guarantees a constitutional right to a timely review
3. in conducting a post-trial review of whether an appellant’s Article 66, UCMJ, and constitutional rights to timely review have been infringed, an appellate court evaluates the four factors set forth by the Supreme Court in Barker v. Wingo (407 US 514 (1972)) for assessing pretrial speedy trial issues: (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; an analysis requires determining which factors favor the government or the appellant and then balancing these factors; no single factor is dispositive, and absence of a given factor does not prevent finding a due process violation
4. post-trial review begins by determining whether there is a facially unreasonable delay sufficient to trigger a due process analysis; prior to US v. Moreno (63 MJ 129 (CAAF 2006)), this assessment was made purely on a case-by-case basis; however, in Moreno, definitive time frames were established that would trigger due process review; action of the convening authority must be taken within 120 days of the completion of the trial; appellate review by the CCA must be completed and a decision rendered within eighteen months of docketing before that court; the government can rebut the presumption of unreasonable delay by showing the delay was not unreasonable; once the due process inquiry is triggered, the length of delay is itself balanced with the other factors
5. amendments to the rules governing post-trial processing contained in the 2017 National Defense Authorization Act and RCM 1109–1112 of the 2019 Rules for Courts-Martial call into question the continued validity of the US v. Moreno (63 MJ 129 (CAAF 2006)), time lines; however, because appellant’s charges in this case were referred prior to the effective dates of these amendments, this issue needed not to be addressed to resolve this appeal
6. in this case, the 481 days between the sentence being adjudged and the convening authority taking action was almost four times as long as the 120-day limit set by US v. Moreno (63 MJ 129 (CAAF 2006)) and was enough to trigger a due process analysis; this factor weighed in favor of appellant
7. under the reason for delay factor in determining whether an appellant’s due process right to speedy post-trial review was violated, an appellate court looks at how much of the delay was under the government’s control, and also assesses any legitimate reasons for the delay, including those attributable to an appellant
8. in this case, where the government was unable to provide any particularized reason for the 481-day delay between the sentence and the convening authority’s action, this factor weighed in favor of appellant
9. where an appellant has asserted his speedy post-trial right, it is entitled to strong evidentiary weight in determining whether appellant was deprived of the right
10. in this case, where appellant made three requests for speedy post-trial processing during the 481-day between the sentence and the convening authority’s action, this factor weighed in favor of appellant
11. prejudice due to post-trial delay is assessed in light of the potential impact on the appellate process; three interests should be considered: (1) prevention of oppressive incarceration pending appeal; (2) anxiety and concern; and (3) limiting the possibility that a convicted person’s grounds for appeal and defenses, in case of retrial, might be impaired
12. in considering the prejudice factor of whether the due process right to speedy post-trial review was violated, the anxiety and concern subfactor involves constitutionally cognizable anxiety that arises from excessive delay and requires an appellant to show particularized anxiety or concern that is distinguishable from the normal anxiety experienced by prisoners awaiting an appellate decision
13. in this case, although appellant claimed prejudice in the form of heightened anxiety and concern because he could have been considered for both clemency and parole at an earlier date had his case been processed in a timely manner, there was no evidence of such particularized heightened anxiety where the likelihood of receiving parole or clemency is highly speculative and there is no indication appellant would have been granted either at the earliest possible date; the uncertainty of any possible impact of the delay here—maybe he could have been paroled earlier and maybe he could have merited clemency—does not raise evidence substantial enough to establish prejudice; this factor weighed in favor of the government
14. where there is no finding of prejudice, a due process speedy post-trial delay violation only occurs when, in balancing the three other factors, the delay is so egregious that tolerating it would adversely affect the public’s perception of the fairness and integrity of the military justice system
15. in this case, the 481 days between the sentence being adjudged and the convening authority taking action was not severe enough to taint public perception of the military justice system where (1) it did not involve years of post-trial delay, (2) there was no indication of bad faith on the part of any of the government actors, and (3) there was also no indication of prejudice
16. although the 481-day post-trial delay between the sentence and the convening authority’s action was lengthy enough to trigger a due process review, it resulted in no prejudice to appellant, nor did it threaten the public’s trust in the fairness and integrity of the military justice system; therefore, no due process violation occurred

Miscellaneous Matters: Judicial Review: Generally

1. appellate courts can take judicial notice of law and fact just as a military judge can under MRE 201(b)
2. in this case, where the government asked an appellate court to take judicial notice of the operational tempo of appellant’s command to justify the military judge’s post-trial delay in authenticating the record of trial, the court declined to do so where the government provided no information that made indisputable the operational tempo of the command