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The rise and fall of post-trial - is it time for the legislature to give us all some clemency?
Army Lawyer, Dec, 2007 by John A. Hamner
Collazo exhibited the courts' willingness to create a judicial remedy despite no showing of actual prejudice. The CAAF recognized the inconsistency with Banks, which remains good law, (158) yet in United States v. Tardif, the CAAF followed the same reasoning as Collazo in determining that the courts of criminal appeal had the authority under Article 66(c) to "grant appropriate relief for unreasonable and unexplainable post-trial delays." (159) The battle over unreasonable post-trial delays continued in United States v. Jones, which provides an excellent synopsis of the courts' authority to grant relief for excessive post-trial processing and failure to adhere to post-trial procedures. (160)
In United States v. Jones, the CAAF reviewed the NMCCA's decision that despite the post-trial processing of appellant's case being unreasonable, he did not suffer prejudice. (161) The CAAF used its power under Article 59(a), UCMJ to conduct a de novo review to assess prejudice, and made it clear that its authority under Article 59(a) is "entirely distinct from the Court of Criminal Appeals' Article 66(c) sentence appropriateness powers" that we saw in Wheelus. (162) This distinction is important because it explains the apparent disconnect in the service appellate courts granting relief for excessive post-trial delay despite the lack of prejudice that Banks required. In United States v. Toohey, the CAAF confirmed that,
"[A]n accused has the right to a timely review of his or her findings and sentence." (163) This includes the right to a reasonably timely convening authority's action, (164) the reasonably prompt forwarding of the record of trial to the service's appellate authorities, (165) and reasonably timely consideration by the military appellate courts. (166)
The CAAF's recognition of these stages of post-trial review means that the Due Process Clause constitutionally guarantees the right to a timely review. (167) In applying the Barker v. Wingo factors, the CAAF first had to determine whether an appellant suffered prejudice. (168) The first factor is the prerequisite to the application of the remaining factors. (169) The remaining factors are: the reasons for the delay; whether the appellant asserted his right to a timely appeal; and whether the appellant suffered any prejudice. (170) In Jones, the CAAF determined that the length of delay was facially unreasonable. (171) The CAAF further determined that the appellant had in fact suffered prejudice and granted relief under Article 59(a), UCMJ. (172) In granting relief to Jones under Article 59(a), the CAAF made it clear that relief for lack of due process for a post-trial review requires a showing of prejudice, whereas relief under Article 66(c)'s sentence appropriateness does not. (173) Thus, because there was "a finding of legal error accompanied by Article 59(a) prejudice,... [the CAAF] could order a remedy ... rather than remanding the case for that purpose." (174) If there had not been prejudice, then the court of criminal appeals would have had to grant relief under Article 66(c). (175) Finding that the delay was facially unreasonable was the CAAF's threshold step in determining that Jones suffered prejudice. The court made that step easier in United States v. Moreno, (176) which brings us full circle.
