Restoring the Promme of the Right to Speedy Trial to Service Members ~n Pretrial Arrest and Confinement

• Author: Major Damel P. Shaver
• Pages: 02

1. Introduction

   The Sixth Amendment to the United States Constitution guar. antees that an "accused shall enjoy the right to B speedy . . trial "1Additmnally, the Eighth Amendment, by proscribing excessme bail, xnplicitly reinforces the principle that an indindual 1s presumed innocent and should retain the right to liberty until the state actually convicts that individual of a crime 2 The Constitution, however. does not explicitly distinguish the nght to a speed>- tnal enjoyed by a person who is free dunng pretrial proceedings from the same right enjoyed by a person whom the government has restrained or confined pnor to B finding of guilt Severtheless. because an) form of detention inherently deprives the mdindual of some measure of liberty, the right to a speedy trial IS plainly more important to an mdiwdual under restraint-particularly pretrial confinement-thanIt LS to someone enjoymg relatively free reign while awaiting trial. Accordingly the nght to B speedy trial not onl? serves as an ele. ment of repose that protects Individuals from the dilatory effects of Indeterminate criminal proceedings, but also prexenta the state from capnciously depriving a person-a person whom the law cloaks wth a presumption of innocence-of his or her fundamental nght to Iibert?.

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   'hlajar, Judge Adrocale Generals C absiqned BQ General Counsel United Sfatez . 1980 United States Militar) Academy. d D ,

   LL hl 1991, The Judge Adioeate General

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   Reriiu 1991-93 Edlfor The.

   'E S COSET amend VI'Id amend E . , €iceiswe bail shall not be required

   d States Army Preaen s Performance Ofice B laudi 1936 it'ashinq

   ted States Armr Editor 1990.91, Ediror ~n Chief,

   The federal government correctly has taken the speedy trial mandate seriously by legislating speedy trial laws, executing speedy trial rules, and adjudicating speedy tnal issues. The resulting body of law charges the government, in all cnmmal prosecutions, with the duty to exerciae reasonable diligence in moving the case to trial. Similarly, protecting an accused service member's right to a swift resolution of pending criminal charges has tsified the development of speedy trial law in the military, creating B speedy trial framework that other justice Systems in Amencs consistently have acknowledged, if not emulated 3

   Not surprisingly, all three branches of the federal government have made their marks on the emergence of the present state of speedy trial law in the military. In passing the Uniform Code of Military Justice (Code or UCMJ) in 1950,d Congress included Article 10, which requmes the government to take "immediate steps" to try an accused whom B commander has placed in pretrial arrest or confinement 6 Seeing the need to clarify this congressional mandate, the Umted States Court of Military Appeals in United States u. Burton6 declared that the government presumptively has failed to take the "immediate steps" required by UCMJ Art& 10 If it has held an accused m pretrial confinement for more than three months.' Almost coincidentally, the United States Supreme Court established a four-part balancing test for evaluating Sixth Amendment speedy trial claims in Borkei U. Wmgo 8

   Twenty years later, the President promulgated a new Rule for Courts-Martial (R.C.M.) 707,s which generally directs military

   'Cf lV Wrurma~ MILITAX> Lm &D PRECEDENTS.preface (1st ed 1886) lnotmg

   4ll C M J art 10 (1988)&See id IWkn my person avbpt to thm chapter 13 placed m m e e t OT e m finemenf prior to tnal. immediate steps shall be taken to inform him offhe specific wrong af whxrh he is accused and to fr)- ham or to dlsmles the charges and release him "1

   844 C hl R 166 (C MA 19711, oierrulad m port by United States s

   DlcCalllster, 27 Y.J 138 IC M A 19881 !pm~pectluely repeslmg the holding inBurlon m m much as d prowded an accused to a speedy tnal nght that he OT she could tngger by B demand) On October 5, 1994. the National Defense Authonratian Act far Fiscal Year 1995. Pub L Na 103.337, 108 Star 2663 (19941, changed the name af the Umted States C O U ~ of mhtaw Appeals to the Umted States courr of Appeals far the Armed Forces The same act changed the names ai the Court. af

   M J 213, 229 n* (19951 This note will refer to the court by the name applicable when the court rendered >is decision

   'See United States Y Dnver, 49 C hl R 376. 379 (C M A 19741 (changmg the Burfan three-month speedy mal rule to a more workable 90-day mleJ

   8407 US 524, 530 11972)

   that mAtary law t)~~callyseta the mample far other jvstlce aybtemr to fallow1

   A ~ ~ ~ ~ I ~ see united states in^, 41

   '~LWAL FOR c o m s - n c m u united srates, RC >I io7 118841 herelmafter

   nililraw R~~~~~ s the couria cnmrnai

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   authorities to bring an accused to trial within 120 days. This nex rule, which appears in Change 6 to the Manual for Courts. Martdlo (Manual), envisaged the simplification of some forty years of confunon over what the right to a speedy trial means to a person subject to the Code The enactment af this new rule apparent15 was sufficient to convmce the Court of Military Appeals that the President final15 had provided a procedural mechanism that was capable of carrying out Article 10's "immediate steps" mandate without judicial intervention. Accordingly, in Gnited States v. Kossman," the Court of Military Appeals retired the Burton nmetyday rule. Acntical analysis of the court's holding in Kossrnon, hoa-ever, reveals that it resurrects a multitude of Issues--and creates a number of new Issues-that wil affect a sen-~cemember's nght to a speedy tnal. The most important consequence of the Kossman deci-S L O ~ and the provismns of the new R C.11. 707, however. 1s that they render the present structure for assuring the nght to a apeedy tnal to service members m pretrial detention statutorily infirm and constitutionally unava~ling.

   I1 Constitutional Rights to a Speedy Trial

   The Due Process Clause of the Fifth Amendment and Speedy Trial Clause of the Sixth Amendment are the primary SOUICBS of every Citizen's nght to a speedy tnal Additionally, Congress and most State legislatures have passed speedy tnal Statutes that provide cnminal defendants with even greater speedy tnal nghta than those secured by the Bill of

   1. Speed) nral and Due Process

      In general, the Due Process Clause of the Fifth Amendment protects an individual from the prejudicial effects of deliberate gorernment delays in accusing. charging, and indicting on criminal offenses In L'mted States U. Manon,'3 the Supreme Court held that

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      hi J 26a 'C >I A 1993

      ).See rd R C hl iO7'ai 1984 (C6, 16 XJOV

      1 ~ 8

      the familiar Sixth Amendment right to a speedy tnal did not apply until the government actually had "arrested, charged, or otherwise subjected [an individual] to formal restraint pnor to indictment."'4 The Court noted that 8tatuteS of limitations generally protect the individual from m y prejudice that may inhere from an extended delay pnor to the pendency of formal criminal proceedings Nevertheless, the Marian Court conceded that excessive and unnec-essary delays prior to an mdwidual's arrest or indictment could trigger due process concerns. Justice Douglas's concumng opinion aptly states the follawmg:

      The anxiety and concern attendant on public accusation may weigh more heavily upon an individual who has not been formally indicted or arrested for, to him, exoneration by a jury of his peers may be only a vague possibility lurking in the distant future. Indeed, the protection underlying the right to B speedy trial may be denied when a citizen 18 damned by clandestine innuendo and never ~ v e n the chance promptly to defend himself in a court of law.16

      In Unrted States u. Louasco,17 the Court addressed the issue of whether the actual prejudice arising from a delay in charging an individual could be sufficiently detrimental to warrant the remedy of dismissal. Noting that the Sixth Amendment did not apply to such a claim,l8 the Louesco Court formulated a two-part test to determine whether precharging delays violated B putative defen- Id sf 325. bee ofdo id. at 319 lemng Note. The Right fo Speedy Pial, 67 COL L REV 846. E46 (19571) (IIiln no event Idoeil the nghr to speedy fnsl arm before there 1% eume charge 01 arrest, even though the pmseeutmg anthanties had knowledge of the o f h i e long before this7

      -:Manon. 404 US at 325-26 The Court bpeiifieally noted Lhst the preiudiees commanly cited by defendants ro suppart Suth Amendment speedy trial c l ~ m - namely, the posaibdity that memories udl dim, endence will be lost. and witnesses may become unaiadable--narmalli will be Insufficient to support a due pmcesa speedy tnal clam Id As long as an apprapnate statute of limitations covers the artmable ctimmal conduct, the Indmdual enjoys a nght to repose that E adequate to protect him or her from mdetermmate inmmal proceedings See United States v

      90 US 222. 227 (1968) Ienmmal Statuted af limifatl~ns are bmtute8 a1

      Order ai R R Telegraphere 7, Rahay Express Agency, 321 U S 342, 349even d m e has a inst claim 11 1s "Unit not to PYL the adversary an nmce to.Ithm the penad of hmltatmn and the nght to be free frotime comes to prevail mer the nght to pmseevte them') In adreasserted d8 holding ~n Toussie Y Umtad States 397 US 112 1197statutes of hmdatmni "protect mdwiduals from hannp to defend fheharges when the basic facta may haw became obscured by the pansage of time and to mlrvmiie the danger ofoffimal pumshment because of acu m the far-dmtant past " Id sf 114-15

      1 W o n m 404 U S af 330-31 1Dovglas J , eoncu-gl 2.431 D S 783 (19771

      lrId at 790,we Morton, 404 U S at 321

      dent's due process rights.19 The defendant first must prove that he or she suffered actual prejudice because of the delay20 Second, the court must find that the government deliberately and oppressively delayed its prosecution of the case or intentionally acted in a dilatory manner with indifference to the rights of the prospective defmdant.21 If a defendant meets this two-part test. the...