When the government fails to prepare and authenticate the official record of trial within the time limits prescribed by the Rules for Courts-Martial, it can be considered an “appellate delay.” A convicted service member has a due process right to a timely post-trial review and appeal. An unreasonable delay in preparing the transcript can prejudice this right. The remedy for this delay is sought at the service’s Court of Criminal Appeals.
The appellate defense attorney will first file a motion with the appellate court, asking the court to find that the delay is unreasonable. The court will then apply a four-factor balancing test from the Supreme Court case Barker v. Wingo. The court will look at the length of the delay, the reasons for the delay, whether the appellant demanded a speedy review, and, most importantly, whether the delay caused actual prejudice to the appellant. Prejudice can include being forced to serve more of a confinement sentence than might ultimately be approved or suffering from prolonged anxiety and uncertainty.
If the appellate court finds that the delay was unreasonable and prejudicial, they have several remedies. They cannot overturn the conviction itself based on post-trial delay. However, they can provide meaningful sentence relief as a remedy for the due process violation. This can include reducing the period of confinement, disapproving any forfeitures of pay, or setting aside a punitive discharge. This ensures that the government’s own post-trial inefficiency does not unduly harm the appellant.