Motion to Dismiss for Lack of Speedy Trial
The Sixth Amendment right to a speedy trial is applied to military jurisprudence through two separate and distinct provisions– Rule for Court-Martial (R.C.M.) 707 and Article 10 of the Uniform Code of Military Justice (UCMJ) (10 U.S.C. § 810). While both provisions seek to protect the same constitutional right, and while there is considerable overlap between the two, each provision has separate rules regarding when the protections attach and when they are breached.
Whether stemming from R.C.M. 707 or from Article 10 UCMJ, a motion to dismiss for lack of a speedy trial must be raised before the court-martial is adjourned, and it is waived by a guilty plea, as provided in R.C.M. 907(b)(2)(A) and 905(e). Once the issue is raised, the burden of persuasion rests with the government. R.C.M. 905(c)(2)(B). Before hearing on the motion, the parties may stipulate as to undisputed facts and dates of relevant pretrial events. The stipulation will provide the court a chronology detailing the processing of the case. R.C.M. 707(c)(2).
R.C.M. 707 provides that charges against an accused must be dismissed if they are not brought to trial within 120 days of the earlier of preferral, pretrial confinement, or recall to active duty under R.C.M. 204. Arraignment equals trial under R.C.M. 904. The date the charge is preferred, pretrial restraint is imposed, or on which the accused is called to active duty does not count toward the 120 days. The date the accused is brought to trial does count. If the accused is released from pretrial confinement for a “significant period,” the time period runs from the earlier of preferral or re-imposition of restraint. United States v. Reynolds, 36 M.J. 1128 (A.C.M.R. 1993). A lesser form of restriction may be considered to be a release from confinement.
If charges are dismissed or a mistrial is granted, the speedy trial clock is reset to begin on; date of dismissal in cases where the accused remains in pretrial restraint; date of mistrial, or; earlier of re-preferral or imposition of restraint for all other cases. R.C.M. 707(b)(3)(A), United States v. Bolado, 34 M.J. 732 (N.M.C.M.R. 1991); aff’d, 36 M.J. 2 (C.M.A. 1992). If there is no re-preferral and the accused remains in pretrial confinement, then the time period starts the date the charges are dismissed or a mistrial is declared. If a rehearing is ordered or authorized by an appellate court, then there is a new 120-day period. See United States v. Becker, 53 M.J. 229 (C.A.A.F. 2000) (applying R.C.M. 707 timing requirements to a sentence rehearing but finding that remedy of dismissal of charges too severe).
A commander can dismiss charges even if there is an intent to re-institute charges at a later date. Dismissal of charges cannot, however, be a subterfuge to avoid the 120 day speedy trial clock. United States v. Robinson, 47 M.J. 506 (N.M.C.C.A. 1997). Factors courts will consider to decide if a dismissal is a subterfuge are: Convening Authority’s intent, notice and documentation of action, restoration of rights and privileges of accused, prejudice to accused, and whether there were any amended or additional charges. See also United States v. Anderson, 50 M.J. 447 (C.A.A.F. 1999), wherein CAAF finds no subterfuge under the facts of the case and declares, contrary to the Government’s concession, that the speedy trial clock was restarted on the date of dismissal. Withdrawal by a commander under R.C.M. 604, however, does not toll running of speedy trial clock. United States v. Weatherspoon, 39 M.J. 762 (A.C.M.R. 1994); See United States v. Tippit, 65 M.J 69 (C.A.A.F. 2007) (based upon the SJA’s advice, the Special Court-Martial Convening Authority (SPCMCA) signed a withdrawal of charges – C.A.A.F. honored the SPCMCA intent to dismiss the charges despite the misnomer and found no violation of R.C.M. 707).
Some delays are excludable from the 120-day limit under R.C.M. 707. All periods of time during which appellate courts have issued stays in the proceedings, or the accused is hospitalized due to incompetence, or is otherwise in the custody of the Attorney General are excluded from the 120-day limit. If after commitment under R.C.M. 909(f), the accused is returned from the custody of the Attorney General to the custody of the general court-martial convening authority, a new 120-day time period begins upon such return.
Any pretrial delays granted by the convening authority before referral or by the military judge after referral are excluded. United States v. Lazauskas, 62 M.J. 39 (C.A.A.F. 2005). The convening authority may delegate the power to grant continuances to an Article 32 investigating officer. The Manual for Courts-Martial (M.C.M.) discussion of R.C.M. 707(c)(1) lists examples of when a pretrial delay might be granted. These include the need for: time to enable counsel to prepare for trial in complex cases; time to allow examination into the mental capacity of the accused; time to process a member of the reserve component to active duty for disciplinary action; time to complete other proceedings related to the case; time requested by the defense; time to secure the availability of the accused, substantial witnesses, or other evidence; time to obtain appropriate security clearances for access to classified information or time to declassify evidence; or additional time for other good cause.
The decision to grant or deny a delay is subject to an abuse of discretion and reasonableness standard. United States v. Sharp, 38 M.J. 33, 37 (C.M.A. 1993). Essentially what this means is that the determination that a delay is necessary is subject to an abuse of discretion standard of review, while the length of the delay and the diligence of the government during the delay is subject to a reasonableness standard. The subject of a reasonable delay often arises when the defense requests a sanity board be conducted. While a delay for this reason is specifically excluded from the time limit by R.C.M. 707(c)(1)(A), the government has an obligation to proceed with diligence. Courts have indicated an unwillingness to hold the government to a strict standard when processing a sanity board due to the complexity and importance of such examinations. See e.g., United States v. Badger, 7 M.J. 838 (A.C.M.R. 1979). There are, however, cases where courts have found that the government’s processing was unreasonably slow or delays were caused by government negligence and have only excluded the amount of time that would have been reasonable. See United States v. Carpenter, 37 M.J. 291 (C.M.A. 1993); see also United States v. McDowell, 19 M.J. 937 (A.C.M.R. 1985)(motion to dismiss brought under Article 10 UCMJ). This standard, of course, applies equally to delays for other reasons. See United States v. Longhofer, 29 M.J. 22 (C.M.A. 1989)(discussed time necessary for processing security clearance).
The sole remedy for a speedy trial violation is dismissal of the affected charges, with or without prejudice. According to R.C.M. 707(d), the charges must be dismissed with prejudice if the accused’s constitutional right to a speedy trial was violated. The factors for determining whether a delay rises to the level of a constitutional violation are discussed by the U.S. Supreme Court in Barker v. Wingo, 407 U.S. 514 (1972). The factors include the length and reasons for the delay, prejudice to the accused, and whether the accused has made a demand for a speedy trial. If there is no constitutional violation, R.C.M. 707(d) provides that the court shall consider, among others, the following factors when deciding whether to dismiss with or without prejudice: the seriousness of the offense, the facts and circumstances of the case that led to dismissal, the impact of re-prosecution on the administration of justice, and any prejudice to the accused. United States v. Bray, 52 M.J. 659, 663 (A.F. Ct. Crim. App. 2000); see also, United States v. Dooley, 61 M.J. 258 (C.A.A.F. 2005).
Article 10 of the UCMJ, in pertinent part, states: “When any person subject to this chapter is placed in arrest or confinement prior to trial, immediate steps shall be taken to inform him of the specific wrong of which he is accused and to try him or to dismiss the charges and release him.” The accused must be in confinement, arrest, or subject to severe restriction in order to trigger the protections of Article 10. Once triggered, however, Article 10 UCMJ is broader protections than those of R.C.M. 707 and of the Sixth Amendment itself.
Compliance with R.C.M. 707 does NOT equal compliance with Article 10. United States v. Hatfield, 44 M.J. 22 (C.A.A.F 1996). Article 10 may be violated where accused is tried in less than 120 days, or even in less than 90 days. Many circumstances, however, may justify delays beyond these traditional periods. “The touch stone . . . is not constant motion, but reasonable diligence in bringing the charges to trial. Brief periods of inactivity in an otherwise active prosecution are not unreasonable or oppressive.” United States v. Kossman, 38 M.J. 258, 262 (1993) (citing United States v.Tibbs, 35 C.M.R. 322, 325 (C.M.A. 1965)).
When Article 10 UCMJ is triggered, the government must prove, by a preponderance of the evidence, that it exercised reasonable diligence in processing the case at all stages. Note however, that this only requires reasonable diligence, not constant motion at all times. United States v. Kossman, 38 M.J. 258 (1993). In United States v. Burton, 21 C.M.A. 112, 44 C.M.R. 166 (1971), the Court of Military Appeals created the “Burton rule” which essentially created a rebuttable presumption that the government had not exercised due diligence if 90 days had elapsed from confinement to trial. This presumption was eventually abrogated by Kossman. That case returned us to the standard of reasonable diligence. See United States v. Tibbs, 15 C.M.A. 350, 35 C.M.R. 322 (1965). The courts look at the totality of the circumstances in determining reasonable diligence. If there were excessive defense delays, bad faith, or obstructionism on the part of the defense, courts tend to be more lenient to the government. Conversely, if the defense has explicitly requested a speedy trial, courts tend to look at the government with closer scrutiny. An appropriate analysis of Article 10 includes consideration of the Barker v. Wingo factors. See United States v. Birge, 52 M.J. 209 (C.A.A.F. 1999), United States v. Cooper, 58 M.J. 54 (C.A.A.F. 2003). The remedy for an Article 10 violation is dismissal with prejudice.