Delay in Authenticating ROT

In United States v. Arindain, the appellant complained of post-trial delay--it took 404 days from the date of sentence until the action of the convening authority, over 260 days of which were waiting for the military judge to authenticate a record of trial over 1,600 pages long. The appellant was convicted of unpremeditated murder and was sentenced to life in prison.

The AFCCA correctly noted in n.6 that the Moreno presumption of unreasonable delay if the convening authority fails to act on the case within 120 days of the sentence did not apply to the appellant's case--it only applies to courts-martial completed on or after 10 June 2006. Nevertheless, the court cites the presumption, claims that the 404-day delay certainly raises the presumption, and thus the court has to apply the Barker v. Wingo factors. As the appellant's court-martial was completed before 10 June 2006, the AFCCA should have determined if the delay was "facially unreasonable," before applying the Barker v. Wingo factors. While they may have gotten to the same place, it is important to apply the rules correctly.

After applying the factors, the AFCCA determined that the appellant did not suffer any due process violation in the post-trial processing of his case. The appellant was unable to show any prejudice and, like the AFCCA, I would not grant him any relief. This is a guy who killed the mother of his child and left her body face down in a muddy ditch. Nevertheless, I find it troubling that the judge took 260 days to authenticate the record. The AFCCA notes that the judge was the factfinder, was the chief judge of that judicial circuit, and no doubt had other duties. It cites to the CAAF's decision in Moreno expressing unease with setting a timetable for the deliberative process of the NMCCA. But there is no deliberative process in authenticating an ROT. It should be just reading the record to determine if the court reporter got it right. If corrections had to be made, that would have been noted in the record. Furthermore, the AFCCA acts as if authenticating the record is some kind of lesser duty that is not as important as trying cases or doing whatever chief circuit judges do.

Certainly a military judge could be on leave when the transcript is completed or be in the midst of another case that would justify some delay in authenticating a 1,600 page record. But taking almost 9 months to authenticate an ROT should not be acceptable. Without more, I cannot see how the AFCCA could find the delay in authenticating the ROT "not unreasonable."