The ACCA has overturned the conviction of Private Simmons because the judge erroneously failed to dismiss the charges for an Article 10, UCMJ, violation. Here is the link to the unpublished opinion, Judge Ham writing for the court.
United States v. Simmons, ARMY 20070486 (A. Ct. Crim. App. 12 August 2009).
A military judge sitting as a general court-martial convicted appellant, in accordance with his pleas, of absence without leave, failure to go to his appointed place of duty, failure to obey a lawful order, and disorderly conduct, in violation of Articles 86, 92, and 134, Uniform Code of Military Justice, 10 U.S.C. § 886, 892, and 934 [hereinafter UCMJ].[1]
[1] Appellant was also arraigned on additional charges and specifications of failure to go to his appointed place of duty, failure to obey a lawful order, rape, assault (two specifications), and kidnapping, in violation of Articles 86, 92, 120, 128, and 134, UCMJ. The government dismissed those charges and specifications after arraignment but prior to trial.
Appellant was in pretrial confinement for 135 days, and was sentenced to four months confinement, along with other punishments. Arraignment at day 107 did not stop the clock – this is an Article 10 issue, not R.C.M. 707.
The case has an excellent historical discussion of military speedy trial requirements and useful comparisons to federal civilian cases. The court concludes that
Burton really is in the “dustbin of history;” that the more amorphous concept of “reasonable diligence” is back to replace the “certainty of absolute chronology” with the “uncertainties of a relative concept;” and that Article 10 is more stringent than the Sixth Amendment requirements under Barker v. Wingo.
I will not list out the factors considered, merely comment that the prosecution appears to have offered a litany of the usual non-specific, conclusory statements it is wont to do. ACCA has carefully taken those statements, lack of evidence, and lack of diligence apart.