A Right Way and a Wrong Way: Remedying Excessive Post-Trial Delay in Light of Tardiff, Moreno, and Toohey
Abstract
Since the inception of the Uniform Code of Military Justice (UCMJ), military courts have struggled with the problem of excessive post-trial delay. Delays at every stage of the post-trial process, from transcribing the record and obtaining final action from the convening authority to getting a convicted soldier's appeals decided by both tiers of the military appellate system, have plagued the military justice system. In response, the U.S. Court of Appeals for the Armed Forces (CAAF), and its predecessor in name, the U.S. Court of Military Appeals (CMA), have tried various approaches to address this problem over the years. It is, therefore, understandable that CAAF would become increasingly frustrated and seek to find ways to remedy this problem itself. Unfortunately, Congress explicitly limited the jurisdiction of the military courts to preclude them from remedying legal errors that do not result in material prejudice to a substantial right. Accordingly, CAAF's attempts to find a way around the limitation of Article 59(a), quite simply, are unlawful. Whether relying on semantics to give the service courts apparent authority to grant relief under Article 66(c), or simply ignoring Article 59(a) altogether, it does not change the fact that the military courts are now reducing sentences on the ground of an error of law without the required showing of prejudice. Amending the Manual for Courts-Martial would help to expedite the early stages of post-trial processing, which are the sources of most unexplained delay. Changing Department of Defense regulations regarding clemency, parole, and the preparation of DD-214s would also help to reduce common sources of prejudice caused to service members awaiting appeal of their cases. Combined with other steps, such as using more efficient techniques of transcription, the problem of dilatory post-trial processing can be quickly and lawfully ameliorated without having to resort to questionable legal holdings.
Document Details
- Document Type
- Technical Report
- Publication Date
- Apr 01, 2007
- Accession Number
- ADA519281
Entities
People
- William J. Nelson
Organizations
- The Judge Advocate General's Legal Center and School