Post-trial delay

The recent Coast Guard case outlines nicely for an accused and military defense counsel how an appellate court evaluates lengthy post-trial delay.

1. Governing Framework for Post‑Trial Delay

Courts evaluate post‑trial processing under two independent regimes:

Congress’ 23 December 2022 amendments now allow direct appeal of all guilty findings, regardless of sentence, under Article 66(b)(1). Because the new statute eliminated the convening‑authority “action,” Moreno’s bright‑line presumptions no longer map neatly onto modern post‑trial practice, forcing CCAs to decide facial reasonableness case‑by‑case. U.S. Department of DefenseLegal Information Institute

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2. United States v. Taylor (C.G. CCA 2024) — Facts in Context

• Timeline.

  • 23 Feb 2022 – trial and sentence.

  • 23 Dec 2022 – statutory change grants Taylor a newly created right of direct appeal.

  • 5 Mar 2023 – Office of Military Justice discovers the physical record is missing; an electronic copy exists.

  • 22 Mar 2023 – Coast Guard decides the new Article 66(b)(1) applies retroactively.

  • 25 Apr – 25 Aug 2023 – four‑month failure to obtain authentication affidavits to re‑create the record.

  • 30 Nov 2023 – military judge verifies the reconstituted record.

  • 5 Dec 2023 – appellant first receives written notice of his appellate rights.

  • 27 Dec 2023 – record docketed at the CCA (460 days post‑trial; 373 attributable to Government missteps). U.S. Department of Defense

• Due‑Process Holding.

  • The court declined to adopt any per se threshold for Article 66(b)(1) cases and instead compared the 373‑day Government delay to Toohey’s 790‑day benchmark.

  • Because Taylor showed no prejudice and the delay was far shorter than Toohey’s 2,240‑day total, the panel held the Barker factors did not establish a constitutional violation. U.S. Department of DefenseAF Court of Appeals

• Statutory/Equitable Relief.

  • Relying on Article 66(d)(2) and Tardif, the court found the four‑month affidavit lapse reflected “a lack of institutional diligence” and “warrants some relief.”

  • It disapproved any reduction below E‑6—modest but visible relief aimed at signaling the Coast Guard to tighten post‑trial controls. CourtListenerU.S. Department of Defense

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3. Analytical Take‑Aways

1. Transition Period Risks. Agencies that conducted trials before 23 Dec 2022 suddenly owed hundreds of new records to the CCAs. Taylor shows how retroactive appeal rights can expose fragile record‑tracking systems.

2. Loss of the Physical Record Magnifies Delay. The Coast Guard’s inability to locate the original hard copy—and the unfamiliarity of staff with the re‑authentication process—created the decisive four‑month gap. CCAs increasingly treat missing‑record delays as unreasonable, even without prejudice, because they erode confidence in the reliability of court‑martial judgments. U.S. Department of Defense

3. Evolving “Facial Unreasonableness.” Tucker and Chock demonstrate that the trigger question—when delay becomes facially unreasonable—now turns on the judgment’s entry date and not on erstwhile convening‑authority action. Practitioners must therefore track the entry‑of‑judgment (R.C.M. 1111) and certification (R.C.M. 1112) milestones, not the convening authority’s memorandum. U.S. Department of Defense

4. Article 66(d)(2) Is the CCA’s Safety Valve. Where prejudice is absent, courts still employ Tardif to impose limited sentence relief, fashioning a proportional remedy that deters sloppy post‑trial practice without rewarding an appellant who suffered no material harm.

5. Emerging Best Practices.

   • Digital Chain‑of‑Custody. The Army’s Court‑Martial Case Reports (CMCR) dashboard demonstrates that automated status alerts sharply reduce lost‑record incidents. JAG Legal Center

   • Early Defense Demands. Although not dispositive, a prompt request for appellate review helps the Barker calculus and puts the Government on notice.

   • Writ Practice. When a record disappears, trial defense counsel can petition for a writ of mandamus compelling reconstitution under R.C.M. 1112(g).

6. Systemic Implications. Taylor’s modest relief signals that CCAs will not hesitate to “name‑and‑shame” institutional delays, yet they will reserve harsher remedies (e.g., sentence set‑aside or confinement credit) for Moreno‑grade cases where delay approaches or eclipses two years and prejudice becomes plausible.

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4. Scholarly Perspective

Legal scholarship identifies three structural reforms that would have prevented Taylor‑style delay:

• Universal Electronic Records (Kelso, Post‑Trial Delay: Time for a Change, Army Law., 2021) — mandatory scanning at trial closes the evidentiary chain as soon as the judge signs the judgment.

• Statutory Timelines Mirroring Fed. R. App. P. 11 (Prof. Fidell, Appellate Rights After the Military Justice Act of 2016, 2023 Mil. L. Rev.) — fixed deadlines for transmission of both digital audio and certified transcript.

• Independent Post‑Trial Clerks — separating record preparation from the prosecutorial chain reduces conflicts and incentivizes neutral diligence.

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5. Practical Checklist for Counsel

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6. Conclusion

United States v. Taylor illustrates the modern landscape of post‑trial delay: constitutional violations remain rare absent demonstrable prejudice, but CCAs actively wield Article 66(d)(2) to penalize government lethargy that threatens public confidence. Counsel who monitor entry‑of‑judgment dates, insist on digital record integrity, and file timely writs can both protect clients and help the military justice system meet the promise of Moreno—“a criminal justice system that works in real time, not on borrowed time.”