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Tim Bilecki

Unreasonable Delay

In United States v. Cox, No. 20080819, 2010 WL 3522561 (A. Ct. Crim. App. Jan. 11, 2010)

(unpublished) the convening authority took action in this case in sixty-one days after the trial, but then the government took 248 days to forward the record to the ACCA. The government provided no reasons for the delay in the record of trial. The ACCA had to determine if the appellant was prejudiced by the post-trial delay in this case.

The government exceeded the thirty-day forwarding requirement from United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006), by 218 days. As a result, the ACCA held that this was a presumptively unreasonable delay. The court then applied the four-factor Barker v. Wingo, 407

U.S. 514 (1972), test: 1) the length of the delay is facially unreasonable; 2) the government provided no explanations for the delay until the defense filed their appellate brief (the explanation provided was that the “record had been misplaced during a transfer of cases incident to deployment and the attendant understaffing of responsible paralegal noncommissioned officers.”); 3) the appellant did not assert his right to speedy post-trial processing until his appellate brief was filed; and, 4) the appellant did not establish prejudice. The ACCA applied the prejudice sub-factors from Moreno, 63 M.J. at 138: 1) even if the case would have been processed expeditiously, the appellant would have completed his confinement before appellate review; 2) nothing in the record suggests the appellant was unduly anxious or concerned about the outcome of his appeal; and, 3) appellant asserted no error, other than delay, before the court. As a result, the ACCA found no prejudice and refused to grant relief.

ACCA urged SJAs to “put in place mechanisms to monitor post-trial processing following convening authority action” to avoid delays. The court also urged SJAs to include in the record of trial explanations of any delays that exceed the Moreno timelines. Including a “Moreno memo” in the record of the trial should be standard practice any time that a Moreno timeline is broken.

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