When a trial delay is caused by a change in the convening authority (e.g., when a commander leaves and a new one takes over), a defense attorney can argue that the delay has prejudiced their client’s right to a speedy trial. To establish prejudice, the attorney must show that the delay has caused actual harm to their client’s ability to receive a fair trial or has subjected them to oppressive conditions.
The attorney will first point to the length of the delay itself. While a short administrative delay due to a change of command is often excused, a prolonged delay where the case languishes for many months is not. The attorney will then demonstrate specific prejudice. This could be “actual prejudice,” such as the loss of a key defense witness who has since PCS’d or separated from the service because of the delay. It could also be the degradation of evidence over time, as witnesses’ memories fade.
The attorney can also argue for “presumptive prejudice.” This involves the oppressive nature of the pretrial period itself. If the accused is in pretrial confinement, every day of delay is inherently prejudicial. Even if not in confinement, the attorney can argue that the prolonged anxiety, the public stigma of having charges hanging over their head, and the disruption to their career and family life constitute a form of prejudice. The attorney will present all these factors to the military judge in a motion to dismiss for lack of a speedy trial.