When I wrote this post about the Coast Guard CCA’s opinion in United States v. Cooley, No. 1389 (C.G. Ct. Crim. App. Dec. 24, 2014), in which the court dismissed numerous charges for violation of the appellant’s right to a speedy trial under Article 10 after finding that pretrial confinement is per se prejudicial, I was pessimistic that the court had successfully resurrected Article 10 (declared long-dead in our #10 military justice story of 2013). I saw certification of the case as guaranteed, and I thought that if CAAF stays true to its Article 10 jurisprudence, then it’s going to look for something more than mere confinement to justify a finding of prejudice.
The following CAAF daily journal entry from yesterday says that my prediction will be put to the test:
No. 15-0387/CG. U.S. v. Christopher S. Cooley. CCA 1389. Notice is hereby given that a certificate for review of the decision of the United States Coast Guard Court of Criminal Appeals was filed under Rule 22 on this date on the following issues:
WHETHER THE COAST GUARD COURT OF CRIMINAL APPEALS ERRED BY FINDING THAT PRE-TRIAL CONFINEMENT CAN SERVE AS PER SE PREJUDICE FOR PURPOSES OF DETERMINING A VIOLATION OF ARTICLE 10, UNIFORM CODE OF MILITARY JUSTICE.
WHETHER THE FACTS AND CIRCUMSTANCES OF APPELLEE’S CASE, CONSIDERING THE FACTORS SET OUT IN BARKER V. WINGO, 407 U.S. 514, 530 (1972) AND APPLIED TO REVIEW OF ARTICLE 10 BY UNITED STATES V. BIRGE, 52 M.J. 209, 212 (C.A.A.F. 1999), AMOUNT TO A VIOLATION OF ARTICLE 10, UNIFORM CODE OF MILITARY JUSTICE