15 M.J. 1013 | U S Air Force Court of Military Review | 1983
DECISION
Before a general court-martial consisting of a military judge sitting alone, the accused was convicted, in accordance with his pleas, of larceny of a trailer and eight motorcycles, and unlawful entry. The approved sentence extends to a bad conduct discharge, confinement at hard labor for 24 months, forfeiture of $367.00 per month for 24 months and reduction to airman basic. The accused was given credit for 20 days of illegal pretrial confinement by the military judge because the pretrial confinement hearing was conducted by the staff judge advocate. United States v. Lynch, 13 M.J. 394 (C.M.A.1982)
On appeal, the accused contends that the military judge erred in denying a motion to dismiss for lack of a speedy trial. We agree.
At trial, the accused moved to dismiss the charges because his right to a speedy trial had been denied, pointing out that he was not tried until 140 days after he had been placed in pre-trial confinement.
The Article 32 Investigating Officer was called by the prosecution and testified regarding the delay between the date of his appointment (27 April) and the date of the forwarding of the report of investigation to the general court-martial convening authority (16 July). He stated that on 7 May he convened the investigation and attempted
A system which has no provision for bail must have sufficient procedural safeguards to assure that an accused is speedily tried to minimize the impact of pre-trial confinement. United States v. Heard, 3 M.J. 14 (C.M.A.1977). Article 10, U.C.M.J., 10 U.S.C. § 810, provides the statutory basis for the right to a speedy disposition of charges in the military justice system. It provides:
.. . 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.
It has been held that the provisions of Article 10 are more protective than the Sixth Amendment right to a speedy trial. United States v. Marshall, 22 U.S.C.M.A. 431, 47 C.M.R. 409 (1973). They are, however, more restrictive in one sense because Article 10 applies only after an accused has been placed in arrest or confinement. United States v. Nelson, 5 M.J. 189 (C.M.A. 1976). Restriction to specified limits may be such as to raise a speedy trial issue under Article 10. United States v. Powell, 2 M.J. 6 (C.M.A.1976). A combination of pretrial confinement and restriction requires the Government to exercise reasonable diligence in bringing the accused to trial. United States v. Dunnings, 1 M.J. 516 (A.F.C.M.R.1975).
Once raised at trial, the speedy trial issue is preserved on appeal even though the accused pleads guilty. United States v. Sloan, 48 C.M.R. 211 (C.M.A.1974). Whenever the accused raises the speedy trial issue, the burden is upon the Government to prove that the delay was not unreasonable. M.C.M., 1969 (Rev.), para. 68 i. The Government must demonstrate that truly extraordinary circumstances beyond normal problems such as manpower shortages, illness and leave contributed to the delay. United States v. Marshall, supra.
It is noted that the accused was arrested by Belgian police and confined by Belgian authorities on 27 March. This confinement does not trigger the provisions of Article 10 because the Government is not accountable for the period served in civilian pre-trial confinement. United States v. Reed, 2 M.J. 64 (C.M.A.1976). Although not so accountable, fairness dictates that such period be considered as a factor in reinforcing the existing requirement that court-martial cases be expeditiously processed.
In the ease sub judice, the accused demanded speedy disposition of the charges on two occasions. The first was on 11 May, and the second was on 6 July. Despite these requests, the accused was not tried until 9 September. When the defense requests a speedy trial, the Government must respond and either proceed immediately to trial or show adequate cause for delay. United States v. Burton, 21 U.S.C.M.A. 112, 44 C.M.R. 166 (1971). After a speedy trial request, the Government must diligently bring the accused to trial, even if he is not in confinement for a 90 day period. United States v. Johnson, 1 M.J. 101 (C.M.A.1975). A demand for speedy trial under Burton must be answered by action to bring the accused expeditiously to trial. United States v. Williams, 12 M.J. 894 (A.C.M.R. 1982).
The accused had been in foreign pre-trial confinement and military pre-trial confinement and restriction for approximately four months. He was not tried until almost two months after the date he was released. Although each request from the accused caused the degree of his restraint to be lessened, there was no showing by the Government that there was any corresponding action to expedite the processing of the case.
We find that after the accused had requested speedy disposition of the charges the Government failed to either expeditiously try the accused or adequately explain the delay.
Having declared that the accused’s right to speedy trial has been denied, we must adjudge the appropriate remedy therefor. Although it is claimed that the accused could be compensated for this failure by sentencing credit, the only remedy for the denial of the right to a speedy trial is dismissal of the charges. United States v. Rowsey, 14 M.J. 151 (C.M.A.1982).
As we stated in United States v. Purdy, 15 M.J. 689 (A.F.C.M.R.1983), this Court will closely scrutinize delays in court-martial cases. To reiterate: All responsible personnel (notably those in supervisory positions) must give their total attention to the expeditious and orderly processing of court-martial cases. Failure to do so could cause, as in the case sub judice, a dismissal of the charges. In addition, we must bring to the attention of all that Article 98, U.C. M.J., 10 U.S.C. § 898,
The findings of guilty and the sentence are set aside. The charges are ordered dismissed.
. The Chronology Reveals The Following Significant Events:
12 March — Earliest offense committed by accused
24 March — Latest offense committed by the accused
27 March — Accused arrested by Belgian police and incarcerated
23 April — Accused released and confined by U.S. authorities
24 April — Pretrial confinement hearing Charges preferred
27 April — Investigating Officer appointed under Art. 32, U.C.M.J.
7 May — Art. 32 convened but adjourned because of defense objection to an uncertified translation
Accused requested release from confinement 11 May — Accused requested speedy disposition and release from confinement
12 May — Accused released from pretrial confinement but restricted
17 May — Art. 32 reconvened and closed
1 July — Art. 32 report completed
6 July — Accused requested speedy disposition
16 July — Charges forwarded to the general court-martial convening authority
Accused released from restriction 23 August — Charges referred to trial
9 September — Trial date
. In addition to moving forward expeditiously whenever a request for speedy disposition is made, good military justice practice would appear to dictate that the Government respond, preferably in writing, detailing the reasons for the delay and providing an estimate of when the case will be tried.
. Although not necessary to our decision, it appears even if the accused had not made requests for speedy disposition of the charges, the result would have been the same because the period of nearly four months between confinement and forwarding of the Article 32 investigation was, on the facts of this case, violative of Article 10.
. Art. 98. Noncompliance with procedural rules
Any person subject to this chapter who—
(1) is responsible for unnecessary delay in the disposition of any case of a person accused of an offense under this chapter; . . . shall be punished as a court-martial may direct.