“There are a number of sources of the right to a speedy trial in the military: (1) statute of limitations; (2) Due Process Clause of the Fifth Amendment; (3) Sixth Amendment speedy-trial guarantee; (4) Articles 10 and 33 of the [UCMJ]; (5) RCM 707, [Manual for Courts-Martial]; and (6) case law.” United States v. Reed, 41 M.J. 449, 451 (C.A.A.F. 1995). These sources broadly fall into three categories: Constitutional, statutory, and regulatory.
On Monday CAAF granted review of an Army prosecution appeal under Article 62 involving the regulatory, R.C.M. 707, speedy trial right:
No. 18-0133/AR. U.S. v. James B. Hendrix. CCA 20170439. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862, it is ordered that said petition is hereby granted on the following issue:
WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY DISMISSING THE CHARGE AND SPECIFICATIONS WITH PREJUDICE FOR A VIOLATION OF R.C.M. 707.
Pursuant to Rule 19(a)(7)(A), no further pleadings will be filed.
The Army CCA’s opinion is probably posted on the CCA’s website, but the website is inaccessible from the public internet (discussed here). The opinion is, however, available on Lexis at: United States v. Hendrix, 2017 CCA LEXIS 769 (A Ct. Crim. App. Dec. 14, 2017) (Lexis erroneously identifies this as an Air Force CCA case).
The accused, Private (E-2) Hendrix, was charged with two specifications of sexual assault on November 29, 2016. The alleged victim declined to participate in any prosecution, and the convening authority dismissed the charges. But then – three days later – the alleged victim changed her mind and the charges were re-preferred. Hendrix was then arraigned on June 8, 2017; 156 days after the first preferral.
The military judge found that the re-preferral was a subterfuge and did not restart the 120-day clock under R.C.M. 707. The military judge then concluded:
It is a dangerous perception if it appears that an [a]ccused, who is considered innocent, can be perpetually held in a Flagged state and under the perpetual crucible of potential prosecution, simply because an [alleged victim] may change their mind about their participation in court-martial proceedings. This is particularly true when, as in the instant case, an SVC has been assigned and utilized. Further protections of an [alleged victim] cannot come at the expense of the fairness of our system and the rights of [appellee].
. . . .
[D]ismissing this case without prejudice does nothing to alleviate the speedy trial issue. Doing so would continue to allow the Government to dismiss and re-prefer as they saw fit.
2017 CCA LEXIS 769, at *12.
The prosecution appealed and a three-judge panel of the Army CCA reversed. Writing for the panel, Judge Hagler concluded:
Given the government’s valid purpose for dismissal and the absence of any improper motive or deception regarding that purpose, the military judge’s conclusion that the dismissal was a subterfuge was clearly erroneous and an abuse of discretion.
2017 CCA LEXIS 769, at *11-12. Additionally:
There is only the single dismissal by the convening authority and a subsequent referral to general-court-martial less than one month later. There is no basis in the record to conclude the convening authority and military judge would allow the government to withdraw, dismiss, re-prefer, and refer these charges against appellee ad infinitum, as the military judge suggests.
2017 CCA LEXIS 769, at *13.