Bradly Manning / Motion to Dismiss for Lack of Speedy Trial

03 january 2011

Motion to Dismiss for Lack of Speedy Trial
The Sixth Amendment right to a speedy trial is applied to military jurisprudence through two separate and distinct provisions-- Rule for Court-Martial (R.C.M.) 707 and Article 10 of the Uniform Code of Military Justice (UCMJ) (10 U.S.C. § 810). While both provisions seek to protect the same constitutional right, and while there is considerable overlap between the two, each provision has separate rules regarding when the protections attach and when they are breached.

Whether stemming from R.C.M. 707 or from Article 10 UCMJ, a motion to dismiss for lack of a speedy trial must be raised before the court-martial is adjourned, and it is waived by a guilty plea, as provided in R.C.M. 907(b)(2)(A) and 905(e). Once the issue is raised, the burden of persuasion rests with the government. R.C.M. 905(c)(2)(B). Before hearing on the motion, the parties may stipulate as to undisputed facts and dates of relevant pretrial events. The stipulation will provide the court a chronology detailing the processing of the case. R.C.M. 707(c)(2).


R.C.M. 707

R.C.M. 707 provides that charges against an accused must be dismissed if they are not brought to trial within 120 days of the earlier of preferral, pretrial confinement, or recall to active duty under R.C.M. 204. Arraignment equals trial under R.C.M. 904. The date the charge is preferred, pretrial restraint is imposed, or on which the accused is called to active duty does not count toward the 120 days. The date the accused is brought to trial does count. If the accused is released from pretrial confinement for a “significant period,” the time period runs from the earlier of preferral or re-imposition of restraint. United States v. Reynolds, 36 M.J. 1128 (A.C.M.R. 1993). A lesser form of restriction may be considered to be a release from confinement.

If charges are dismissed or a mistrial is granted, the speedy trial clock is reset to begin on; date of dismissal in cases where the accused remains in pretrial restraint; date of mistrial, or; earlier of re-preferral or imposition of restraint for all other cases. R.C.M. 707(b)(3)(A), United States v. Bolado, 34 M.J. 732 (N.M.C.M.R. 1991); aff’d, 36 M.J. 2 (C.M.A. 1992). If there is no re-preferral and the accused remains in pretrial confinement, then the time period starts the date the charges are dismissed or a mistrial is declared. If a rehearing is ordered or authorized by an appellate court, then there is a new 120-day period. See United States v. Becker, 53 M.J. 229 (C.A.A.F. 2000) (applying R.C.M. 707 timing requirements to a sentence rehearing but finding that remedy of dismissal of charges too severe).

A commander can dismiss charges even if there is an intent to re-institute charges at a later date. Dismissal of charges cannot, however, be a subterfuge to avoid the 120 day speedy trial clock. United States v. Robinson, 47 M.J. 506 (N.M.C.C.A. 1997). Factors courts will consider to decide if a dismissal is a subterfuge are: Convening Authority's intent, notice and documentation of action, restoration of rights and privileges of accused, prejudice to accused, and whether there were any amended or additional charges. See also United States v. Anderson, 50 M.J. 447 (C.A.A.F. 1999), wherein CAAF finds no subterfuge under the facts of the case and declares, contrary to the Government’s concession, that the speedy trial clock was restarted on the date of dismissal. Withdrawal by a commander under R.C.M. 604, however, does not toll running of speedy trial clock. United States v. Weatherspoon, 39 M.J. 762 (A.C.M.R. 1994); See United States v. Tippit, 65 M.J 69 (C.A.A.F. 2007) (based upon the SJA’s advice, the Special Court-Martial Convening Authority (SPCMCA) signed a withdrawal of charges – C.A.A.F. honored the SPCMCA intent to dismiss the charges despite the misnomer and found no violation of R.C.M. 707).

Some delays are excludable from the 120-day limit under R.C.M. 707. All periods of time during which appellate courts have issued stays in the proceedings, or the accused is hospitalized due to incompetence, or is otherwise in the custody of the Attorney General are excluded from the 120-day limit. If after commitment under R.C.M. 909(f), the accused is returned from the custody of the Attorney General to the custody of the general court-martial convening authority, a new 120-day time period begins upon such return.

Any pretrial delays granted by the convening authority before referral or by the military judge after referral are excluded. United States v. Lazauskas, 62 M.J. 39 (C.A.A.F. 2005). The convening authority may delegate the power to grant continuances to an Article 32 investigating officer. The Manual for Courts-Martial (M.C.M.) discussion of R.C.M. 707(c)(1) lists examples of when a pretrial delay might be granted. These include the need for: time to enable counsel to prepare for trial in complex cases; time to allow examination into the mental capacity of the accused; time to process a member of the reserve component to active duty for disciplinary action; time to complete other proceedings related to the case; time requested by the defense; time to secure the availability of the accused, substantial witnesses, or other evidence; time to obtain appropriate security clearances for access to classified information or time to declassify evidence; or additional time for other good cause.


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