Rule for CourteMartid 707: The 1984 Manual for Courts. Martial Speedy Trial Rule

• Author: by Major Chris G. Wittmayer
• Pages: 04

In the 1984 revision of the Manual for Caurts.Martial, the President' has promulgated a new speedy trial rule for military justice practice, Rule for Courts.Martial IR.C.M.1 107. Rule 107 requires that an accused be brought to trial within 120 days after imposition of pretrial restraint or notice of preferral of charges, whichever is earlier.2 The rule also provides, however, that certain periods of time are excluded from the 120 day periad.3 The remedy if the Government fails to timely bring an accused to trial is dsmissai of the charges with prejudice.* The ruie also contains

0 ninety day provision: no accused may be held in pretrial arrest6 or confinement in excess of ninety days.8

THE 1984 MANUAL FOR

A;;:;d

Stares Army. Formerly assigned is Lmgstim Attorney. Lirigaiion Diviwn. Offlee of The Judge Advocate General, 1931 to 1986. Chief Defense Counsel and Tnd Counsd 2d Infantry Di\iran, Kme~.

1979 to 1980. Chef of Criminal Law Chid

Tnd Cdumel and Chief of Legal A S J L S I ~ ~ .

Offlee of the Staff Judge Adksre 1st Infantry Diviwn and Fort Riley, Fort Rlley. Kansas. 1977 to 1979 Served varmus mignments as an Armored Cavalry and YJltary Inteihgence Officer 1970 to 1974. B.S.. United Stam Yihtary Academy 1970 M S Flarlda Inst&

34th Judge Advocate Offleer Beam Course. 1977. Member of the bar of the State

tr8z;;Eh ;:; ~ d ~ a , i ~ f

of Texan.

'The Manual for Courts-Martial. United State$. 1984 [heremafter MCI. 19843 is pmmuigsted by eremfive order of the Praaident. Exec. Order No. 12473. 3 C.FR 201 119851. under the authority of the President ai Commander m Chef of rhe armed foreeQ, U.S. Const. art. 11, $ 2, GI. 1. and m d u the Uniform Code of MLtary Justice. 10 U.S C. 46 801.940 119821 [hereinafter UCMJ]

'MCM. 1984. Rule for CaurbManial 707181 lhsreinafter R C.M.1 '9 c M ,"ll?i

. .

. ,-,.'R C M 707181 and analysis. The 1984 Manual for CourteMBrtial b a r g u e d wJlh three tiers of euthonty: the binding d e s for courts-martd promvieated by BXBCYLLV* order of the Preildent. B nonbindmg 'dismsnon" promuigatsd by the Department of Defense which aeeompanm w h

_le and an ~ x t ~ n s ~ e

"andyad

(iec~mn that Sets forth the nonbinding VLWO of the drafters Sea MChl. 1984. app

"'Arrmf'' m milifiuy practice is a type of pretrial IBstraYlt under whch B person is dlreeted to remain withn speeified limits. such *is the seeusda room m the barracks R.C.M. 3041sl131 A person m the statui of arrest LS prsoluded from performng h U MLtary dutiei Id Arrest is rarely used. ''Resnciim'' under R.C M 304iali21 to less ~nerms specifled Lmlr 18 common. A dewice member under restlietion' normally performs hS 01. her Ulud mrlitary duties. RCM. SO4lallZI.

&RC >I. 707ldl.

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R.C.M. 707 is based7 on the American Bar Aasociation Stan. dards far Criminal Justice on speedy trials and is a significant change in military practice. The 1969 Manual for Courts-Martial did not set a specific time period for bringing an accused to trial. This article will review R.C.M. 707 to determine its intended meaning and examine the decisions that have Construed it since August 1, 1984, when It took eff8ct.s Problem wenu in the rule and errors of courts in con#truing the rule will be discussed.

1. THE 120 DAY RULE AND TRIGGERING EVENTS

   R.C.M. 707 requires that an accused be brought to trial within 120 days after notice of preferral or imposition of pretrial restraint, whichever is earlier. Specifically, R.C.M 707la! states: "The accused shall be brought to trial within 120 days after the earlier of: (1) Notice to the accused of preferral of charges under R.C.M. 508: or 12) The imposition of restraint under R.C.M. 304(a112!.(4!."

   "Notice , , . of prefenal of charges under R.C.M. 308" occurs when the immediate commander of the aceused informs, or "causes" the accused to be informed of the charges that have been preferred.10 "Referral" of charges is the act of formally charging a suspect with specific offenses." Notice of preferral is to occur "as soon as practicable" after preferral of chargesI2 and should typically occur the same day as preferral or the next day.

   "[Rlestraint under R.C.M. 304(s112!.(4)" includes three of the four kinds of pretrial restraint recognized in the Manual "restric. tion" to specified limits, "mest," and pretrial "confinement."13 When first promulgated, the 120 day rule was also triggered by restraint under R.C.M. 3041a)ll1, called "conditions an liberty."14 Conditions on liberty is defined as "orders directing a person to do or refrain from doing specified a~t9."~5

   Conditions on liberty would include an order not to go to the scene of an alleged offense or not to approach an alleged victim or potential witnssses.'6

   R.C M 707 analysis

   WMdBrds for Criminal Jwtlee 119781 'See Exec. Order No 12413, 3 C.F.R 201 "R C.M 3081a1

   "R.C.M. 3081al.

   'R.C.M 304.'R.C.M 707 andyslli. lR.C.M 3041a11ll'R C M 304 dncussion.

   "R.C.M ao7.

   19871 SPEEDY TRIAL

   Conditions on liberty as a specific type of pretrial restraint was first named and defined in the 1984 Manual.17 Change 2 to the 1984 Manual for Courts-Martial removed conditions on liberty as a type of restraint that triggered the running of the 120 day nrle.18 The amended analysis to rule 701 states the change was made because the "minimal infringement on liberty imposed by [conditions on liberty] . . . [does] not warrant imposition of the speedy trial requirements."'Q

   R.C.M. 707 applies to all trials by courtsmartial, regardless of the level of court, he it summary court-martial. special court. martial, or general court-martial.20

   Delay from the time of an offense to preferral of charges or imposition of pretrial restraint is not considered under R.C.M.

   701.21 The statute of limitations provides time limits that apply to this earlier period.l* Delay before imposition of restraint or preferral of charges can also raise an issue of the denial of due process.23

   11. REVIEW AND CRITIQUE OF THE TRIGGERING EVENTS OF R.C.M. 707(a)

   R.C.M. 7071al's statement of the general 120 day rule and the triggering events of notice of preferral or imposition of restraint present few problems. The specified triggering events do, how ever, raise issues on the coverage of the rule in three circumstances: when notice of preferral is significantly delayed after preferral of charges, when restraint is imposed without authority, and when "administrative" restraint i8 imposed. The 1986 change to the rule, which removed "conditions on liberty" from the list of restraints that trigger the speedy trial rule, also merits discussion. To date, one court of military review opinion has addressed an issue on the triggering of the rule: When does the 120 day period begin if B service member is first restrained by civilian authorities on civilian charges?l'

   "R.C M 304 analysis.

   "R.C.M.

   707 malyeis.

   'Id.'Id M 701 dirmsaion and analysis.

   M 707 diseussmn

   M 107 drscv~rion and analysis. sea also United States V. Manon, 401 US 307 118711 ithe Suth Amendment speedy Lnal pmvision has no apphcstion until the putative defendant in some way becomes an 'accused ": prior to that rime, the requirement of due pr0eesa provides proteetian!.

   "Unlted Statal Y. Cumminga, 21 M.J. 987 1N.M.C M.R 19861.

   1. DELA YED NOTICE OF PREFERRAL

      One potential problem area arises under R.C.M. 707lal when there is a significant delay from preferral of charges until notice to the accused of preferral. Delayed notice of preferrd should be uncommon, but it does This delay would not be counted within the 120 day period, even though charges have been brought. When the delay in giving formal notice of preferral is significant, and when the accused or others learn of the charges before formal notice, policies underlying the right to a speedy trial would be implicated. As the Supreme Court has noted in the context of the sixth amendment, the right to a speedy trial protects an accused from the anxiety of unresolved charges and from "public scorn.''25 Because of the possibility of delayed notice of preferral, and with little change in the general effect of the 120 day rule, it might be better if the mle ran from preferral of charges rather than from notice of preferral.

      An opposing concern would arise in the add case in which

      charges were preferred. but were not promptly forwarded to the chain of command for timely processing, as when a victim subjectto the Uniform Code of Military Justice prefers charges.3' This concern, however, is partidy undercut by the requirement that a prson preferring charges sign the charges under oath before a mmmissioned officer authorized to administer This odd preferral situation might also be handled by dismissal of the charges and a new preferral of charges after the immediate commander's preliminary inquiry,lg or through application of the residual exclusion from the 120 day period for "goad CBUS~.''~~

      These provisions will be discussed later.

      e.#, United States Y. Gray 21 M J 1020 iY.M C X R 1 lnotice of preferral

      *Dickey V. Florida 395 U.S 30. 41 119701 IBreman J , concurrlngl: me a180 hrte, J , cmcurrmgl, United States I

      oenvrd 15 days after preferrdl. pentton gmnted. 23 Y J 285 IC M X 19561 Barker V. Wlngo 901 US. 514, 531 119721

      pre&q-mquly inlo B report of an offense. RC.M 3d3 and 301 Nevertheless any person subject to the Uniform Code of Mhtary Jusrice ma) p'efer charges R.C.M. 907. Uniled States Y. Gray. 21 >I J lo20 IS hl.C M R.I. prlition armfed 23 M d 285 IC M A 19861 notes this concern "lAlnv oerson iubiect to the UCMJ

      ~~

      car prefer charges, but such preferrd doer not signal the G~vrrnmenl'r institution of formal charges'' 21 M J. at 1024 lernphasis by the courtl.

      ..,.

      19871 SPEEDY TRIAL

   2. IMPOSITION OF ADMINISTRA TIVE RESTRAINT

      Another potential problem are8 concerns the imposition of "administrative restraint."s' R.C.M. 304Ih) recognizes that limitations may be placed on service members for purposes other thau military justice. Examples include restraint for operational or medical reas0ns.3~...