Post Trial Delays

A strategy for unreasonable and unexplained post trial delay?

Have you, a family member, or a loved one just been convicted at court-martial?

Now what happens; the prosecutors are required to prepare a record of the trial that is forwarded to the military defense counsel, the appellate court, and the military appellate lawyers. These records take time to prepare–and, unfortunately, in too many cases the time is unreasonably long. That means there is an unreasonable delay in getting the appeal started. I read every new case from the Air Force, Army, Coast Guard, and Navy-Marine Corps courts of criminal appeals, so I know this is a problem.

As an experienced military defense lawyer, I have developed a new, potentially helpful strategy to get a faster post-trial action. The sooner you contact me after the trial the better this strategy has a chance of success and benefit to the person.

1. I divide the post-trial process into “boxes.”
a. The first 30 days.
b. The first total 90 days.
c. The 120th day after trial.
2. For each box, I can take a potential action I can take on a client’s behalf.
a. Filling in boxes a. and b. involves filing documents with the prosecutor and the command that referred the charges to trial.
b. Filling in box c. involves filing a document with the appellate court.
c. The final step is for the appellate defense lawyer to raise the post-trial delay as a legal error and ask the court to give additional post-trial confinement credit. On appeal the appellate court can and sometimes does give extra sentence credit for the delay, but again, unfortunately, this can come too late to affect the actual time the person will serve in confinement.

There are many reasons for the delay, some of which the appellate courts will ignore because they are a part of the normal process in getting documents copied, a transcript prepared, and the whole record assembled and mailed to the appellate court. In principle, the “law” requires there be no more than 150 days from the Entry of Judgment to arrival at the appellate court. This is not a hard and fast rule. But you can see why I think something has to be done before the 120th day.

The right to a “speedy” post-trial process is founded on the Due Process Clause of the Fifth Amendment to the United States Constitution, Article 66 of the Uniform Code of Military Justice and various regulations. Keep in mind that the appellate courts evaluate a claim of unreasonable delay using factors laid out in the Supreme Court case of Barker v. Wingo. It’s up to the appellant to show the delay is unexplained and/or unreasonable. Is the delay egregious? Are there any acceptable reasons for the delay? Is there prejudice to the appellant’s rights and appeal from the delay. The appellate courts will look at what the appellant did or didn’t do while the post-trial process was underway (this factor is how we believe our actions could be of help.

Military appellate courts have said that even if there is no due process violation, they still have some discretion to adjudge additional confinement credit without a “showing of prejudice.”

To be clear, we have to say that our approach is new, untested, and may not work. But, if you want to make the effort, call us at (703) 298-9562, or better yet send an email to mljucmj@court-martial.dot come to avoid playing phone tag.

We can also explain how we can help prepare for your appeal with a case evaluation. We always do a case evaluation first before deciding to take on an appeal. It’s an effective method for a client to decide if they want us to represent them on appeal. If the client can’t or doesn’t need us to help on the appeal, they still will have information that can help them deal with the military appellate lawyer.