**Games Lawyers Play:**

# Pre-Preferral Delay, Due Process, and the Myth of Speedy Trial in the Military Justice System

[Colonel Thomas G. Becker, USAF]{.smallcaps}[^1]

*Don't talk to me about "speedy trial\...." That's a game you lawyers
play. As far as I'm concerned, there is no "right to speedy trial," the
way you all play it.*

\- Colonel William E. Collins[^2]

## I. INTRODUCTION: THE CASE OF

**STAFF SERGEANT JACK CROKER**

Life was good for Staff Sergeant Jack Croker[^3] in July 1989. He and
his wife, Mary (also a staff sergeant in the United States Air Force),
were well into successful careers as Air Force photographic intelligence
specialists. Jack in particular was a "fast burner"---he had made his
rank quickly and expected to make technical sergeant in the next
promotion cycle. The Sergeants Croker were stationed together at an
American air base on an island in East Asia, and lived in base housing
there. They had three little children. The youngest was a six-month-old
daughter, Lisa. All was going well for the young family. But everything
changed on July 6, 1989.

Early that afternoon, Jack rushed Lisa into the base hospital emergency
room. The baby wasn't breathing. Jack told the medics that he had left
Lisa with a bottle of formula propped up so she could drink it, and then
left her for several minutes while he looked after his other children
and put in some laundry. (Mary had left the house for work about four
hours earlier. It was Jack's day off). When he returned, Lisa was
covered in vomit and had turned blue. After some frantic and clumsy
attempts at resuscitation, Jack bundled her up and drove to the
emergency room. The doctors quickly revived the baby, and all was
thought to be well. A few hours later, however, Lisa suffered her first
seizure, one of many to follow. A CAT scan and x-rays revealed a skull
fracture, subdural hematoma, and severe edema. Lisa soon needed a
respirator to breath, and successive EEGs showed less and less brain
stem activity. A week later, she was declared "brain dead." The next
day, July 14th, her physicians, with her parents' consent, disconnected
the respirator and Lisa stopped breathing forever.

Lisa clearly had been the victim of violence, and the obvious suspects
were her parents. Notwithstanding initial medical estimates that Lisa's
injuries could have been inflicted up to eight hours[^4] before Jack
brought her to the hospital, which made either or both Crokers possible
culprits, the Air Force investigation focused on Jack almost
exclusively. However, he was not formally charged until March 1991, and
not brought to trial until July 1991. By that time, Sergeant Croker's
life and career were in ruins due to the "administrative" actions taken
by the Air Force while he was under investigation---actions which, in
effect, presumed his guilt, and against which he had no effective
recourse. In the military's speedy trial "game," Sergeant Croker came
out the loser before he was even charged.

On July 8th 1989, Sergeant Croker was put on "administrative hold," a
status which involuntarily extended his overseas tour.[^5] The same day,
he was barred from access to classified information.[^6] Because Jack's
career field required contact with classified information,[^7] he was
barred from his duty section and not allowed to work in his field. Over
the next two and one-half years,[^8] Sergeant Jack Croker, career Air
Force noncommissioned officer and intelligence specialist, bounced from
one menial set of duties to another. Because promotion tests in his
career field contained classified information, Sergeant Croker was not
allowed to test for promotion.[^9] His enlistment expired in Spring
1990. His commander denied him the opportunity to reenlist because of
the pending investigation.[^10] Because of their special skills, the Air
Force offers Special Reenlistment Bonuses ("SRB") to members of Sergeant
Croker's career field as incentives to reenlist.[^11] In Sergeant
Croker's case, the SRB was nearly \$16,000. However, his commander's
action in denying him reenlistment disqualified him for the bonus.

Even though Sergeant Croker could not reenlist in the Air Force, he was
not allowed to separate at the end of his enlistment.[^12] At the
request of the base staff judge advocate,[^13] Sergeant Croker's
enlistment was extended indefinitely pending the outcome of the
investigation and any court-martial.[^14]

On July 22, 1989, the Crokers and their two surviving children traveled
back to the United States on emergency leave to bury Lisa. Two days
earlier, as a condition to being allowed to accompany Jessica's body
home, the Crokers' commander had ordered them to leave their children in
the States when they returned to the base.[^15] The Crokers obeyed and
returned without the children on August 31st. Their commander eventually
rescinded the order, and the Crokers' children were reunited with their
parents at the air base in November. However, the commander then ordered
Sergeant Jack Croker to move out of his family quarters and into his
unit's enlisted dormitory, and further ordered both Crokers that Jack
was not to see his children except in public places.[^16]

Some time earlier, both Crokers had requested reassignment to a
States-side base on humanitarian grounds.[^17] Mary Croker's request was
granted. Jack's, however, was denied because he was under investigation.
In late November, Mary and the children departed for reassignment in the
United States. Jack remained in Asia.

For the next two years-plus, the Crokers were forced to maintain
separate households. During this time, Sergeant Jack Croker was granted
leave to travel to the United States to visit his family on three
occasions, each time flying commercial air at his own expense. One time,
Sergeant Mary Croker was sent on a temporary duty assignment base to the
Asian air base, and they were able to spend a few days together (but
without their children). The cost of Jack's air fares, long distance
telephone calls from East Asia to the Midwest United States, and other
miscellaneous expenses caused by the separation exceeded \$10,000. Jack
was unable to be with Mary and the children during his wife's
hospitalization and convalescence after an automobile accident. The
Croker children suffered emotional problems tied to their father's
absence. Both children and Mary were in therapy. In July 1990, an Air
Force prosecutor visited Mary's base and informed her commanders and
co-workers that both Jack and Mary had been charged with the murder of
Lisa. These statements were false, for no charges had been
preferred[^18] against either Croker as of July 1990. At that time, the
Air Force Office of Special Investigations (AFOSI) still had an open
investigation into Lisa's death.[^19]

Notwithstanding the lack of charges, Air Force legal authorities treated
the case as an ongoing prosecution. From September 1990 to March 1991,
prosecutors and defense counsel exchanged myriad correspondence
concerning discovery, appointment of expert consultants, and scheduling
of and appearance of witnesses at an Article 32 investigation.[^20]
Prosecution correspondence was often signed as "Trial Counsel" or
"Government Representative," titles which exist in military law only
after charges have at least been formally preferred and, in the case of
a "trial counsel," charges have been referred for trial and a
court-martial convened.[^21] Many of the personnel actions taken against
Sergeant Croker during this period (for example, extensions of the
administrative hold action and his enlistment) were officially justified
because of a "pending court-martial." However, no charges existed
against Sergeant Jack Croker until March 21, 1991, when he was formally
charged with involuntary manslaughter.[^22]

After an Article 32 investigation, the charge was referred for trial by
a general court-martial in late April. Trial began on July 15, 1991, at
which time Sergeant Croker moved to dismiss the charge for violations of
his rights to speedy trial and due process. The military judge denied
the motion, but granted a continuance to allow Sergeant Croker to
petition the United States Court of Military Appeals[^23] for a writ of
mandamus requiring dismissal of the charge.[^24] In October, the Court
of Military Appeals denied the petition, without prejudice for renewing
the issues on appeal of any conviction.[^25] Trial on the merits began
on January 13, 1992. Four days later, Sergeant Jack Croker was found not
guilty by a jury[^26] of Air Force officers and enlisted men and women.

A week after his acquittal, Sergeant Croker's commander again denied him
reenlistment in the Air Force, and also denied him a further extension
on his current enlistment. Sergeant Croker made a formal complaint of
his commander's actions under Article 138, U.C.M.J.,[^27] which was
denied. He was honorably discharged from the Air Force and was on an
airplane back to his family by mid-February 1992.[^28]

After more than two and one-half years, Jack Croker was finally
exonerated of the accusation that he shook and pummeled his infant
daughter to death. However, his Air Force career was over, and his
personal and family life would never be the same.

### II. THE PROBLEM: ACCOUNTABILITY FOR

**PRE-PREFERRAL DELAY**

The cruelest irony of Sergeant Jack Croker's experience was that the Air
Force inflicted the vast majority of the damage without preferring any
charges, or even formally apprehending him.[^29] The Air Force--- an
agency of the United States Government --- was able to ruin his career
and, to a large extent, the rest of his life by delaying preferral of
charges while imposing a variety of administrative sanctions during the
delay. Under the current state of the law, the military was able to do
this without speedy trial accountability under the Sixth Amendment[^30]
or Article 10, U.C.M.J.,[^31] and without violating Sergeant Croker's
rights to military due process[^32] or his due process rights under the
Fifth Amendment.[^33]

This problem exists only in the military justice system. In the civilian
world, the government lacks the power to affect a defendant's life and
livelihood, short of an indictment or imposition of pretrial restraint,
which, in turn, would trigger the citizen's Sixth Amendment speedy trial
rights. In the military, the government---as represented by the
commander---may impose numerous adverse administrative actions on the
member based, at best, only on suspicion, and without preferring
charges. Under military court precedent, these actions usually do not
amount to a form of "pretrial restraint" which would trigger speedy
trial accountability. At present, there is no effective remedy in
military law to address oppressive pre-preferral delay. It is the goal
of this article to propose one.

This article will begin with an overview of the law of speedy trial
under the Sixth Amendment, Article 10 of the U.C.M.J., and Rule for
Court-Martial (R.C.M.) 707. It will then discuss the complementary
concepts of "military due process" and due process under the Fifth
Amendment. In each area, the article will address theories of
accountability for oppressive pre-preferral delay in the military
justice system, and how each is inadequate under the current state of
military law. The article will close with two proposed solutions, one
focusing on "military due process" and the other grounded in the Fifth
Amendment.

## III. THE LAW OF SPEEDY TRIAL

In the military justice system, an accused's speedy trial rights are
primarily affected by three sources of law: the Speedy Trial Clause of
the Sixth Amendment to the United States Constitution, Article 10 of the
U.C.M.J., and R.C.M. 707.[^34]

## A. Speedy Trial Under the Sixth Amendment

The seminal authorities for Sixth Amendment speedy trial analysis are
the cases of *United States v. Marion*[^35] and *Barker v. Wingo*,[^36]
decided in 1971 and 1972, respectively. In *Marion*, the Supreme Court
staked out the parameters of a defendant's rights under the Speedy Trial
Clause. In *Barker*, the Court set out the factors to be considered in
deciding whether those rights had been violated.

In *Marion*, three years had passed between the defendant's alleged
crime and his indictment. He claimed this violated his right to speedy
trial. In a unanimous opinion, the Court rejected the argument that the
Sixth Amendment applied to pre-indictment delay, tying the Speedy Trial
Clause to when a citizen becomes an "accused," that is, when he or she
has been indicted or subjected to another form of public accusation,
such as an arrest and holding. In language destined to become frequently
quoted in later decisions, the Court explained the tie between arrest
and the Speedy Trial Clause, and the values the clause sought to
protect:

Arrest is a public act that may seriously interfere with the defendant's
liberty, whether he is free on bail or not, and that may disrupt his
employment, drain his financial resources, curtail his associations,
subject him to public obloquy, and create anxiety in him, his family,
and his friends.[^37]

With *Marion* laying out the building blocks of Sixth Amendment speedy
trial analysis, the Court in *Barker v. Wingo* then turned to the "nuts
and bolts" of deciding whether the right has been violated. *Barker*
reached the Court as an appeal of the denial of a convict's habeas
corpus petition. The petitioner had been arrested in July 1958.
Thereafter, there had been a total of sixteen continuances in his trial
while the state attempted to convict first the petitioner's alleged
co-actor in a brutal multiple murder.[^38] With few exceptions, the
petitioner had not objected to these delays, and had been free on bail
between June 1959 and his October 1963 trial, which resulted in his
conviction.

In a unanimous opinion, the *Barker* Court rejected the inflexible
standards argued by both sides,[^39] and adopted a balancing test which
weighed the conduct of both the prosecution and defense. The Court named
four factors as governing whether an accused's right to speedy trial had
been violated:

1\. The length of pretrial delay;

2\. The reasons for delay, identifying three general categories of delay
by the government: deliberate delay intended to hamper the defense,
neutral delay (such as that caused by overcrowded dockets), and delay
for clearly valid reasons (such as witness unavailability);

3\. Whether the defendant has asserted the right to speedy trial (a
factor to which the Court expressly accorded particularly strong
weight); and

4\. Prejudice to the defendant from the delay.

Regarding the last factor, the Court focused the search for prejudice on
the values protected by the Speedy Trial Clause, as identified in
*Marion*: prevention of oppressive pretrial incarceration, minimization
of a defendant's anxiety, and limitation of impairment of an accused's
defense at trial.

The four *Barker* factors have since provided the blueprint for all
speedy trial analysis under the Sixth Amendment. However, the parameters
of the right---that is, under what circumstances the right could be
evoked and just what societal values it protected---continued to be
refined by the Supreme Court over the next two decades.

Three years after *Marion*, the Supreme Court reinforced the connection
between arrest and the Speedy Trial Clause in the 1975 case of
*Dillingham v. United States*.[^40] *Dillingham* reversed a Court of
Appeals decision that had refused to consider the delay between the
defendant's arrest and his indictment in its speedy trial analysis. In a
per curiam opinion, the Court expressly rejected the notion that the
right to speedy trial depended upon indictment, information, or other
formal charge.

However, in the 1982 case of *United States v. MacDonald*,[^41] the
Court considered the impact of a government decision to formally drop
charges, and held that the Speedy Trial Clause had no application during
a period when the government formally abandons its prosecution, even
when the charges are reinstated some years later. Speaking for a divided
court,[^42] the Chief Justice stated that the Speedy Trial Clause was
not intended to protect defendants from prejudice due to simple passage
of time, a matter which is covered by statutes of limitations and the
Due Process Clause of the Fifth Amendment. Rather, the Sixth Amendment
right to speedy trial is intended to protect citizens from prejudice
stemming from incarceration, other impacts on liberty, and disruption of
life. Once charges have been formally dismissed, these factors are no
longer present. Drawing on the values stressed in *Marion*, the
*MacDonald* Court stated: "Following dismissal of charges, any restraint
on liberty, disruption of employment, strain on financial resources, and
exposure to public obloquy, stress and anxiety is no greater than it is
upon anyone openly subject to a criminal investigation."[^43] In the
case of Jeffrey MacDonald, the physician and former Green Beret captain
discharged from the Army after his military prosecution had been
abandoned, during the period between the dismissal of court-martial
charges and his indictment in United States District Court, "\[h\]e was
free to go about his affairs, to practice his profession, and to
continue his life."[^44]

In 1986, a sharply divided Supreme Court in *United States v. Loud
Hawk*[^45] extended its *MacDonald* reasoning to the situation where an
indictment had been dismissed by defense motion, and the government had
pursued an eventually successful interlocutory appeal. In holding that
the time when no indictment was outstanding and the government was
seeking a reversal of the dismissal did not weigh towards a Speedy Trial
Clause violation, the Court reinforced the ties between the right to
speedy trial and the existence of a formal prosecution, and also the
values protected by the Sixth Amendment, that is, pretrial deprivations
of liberty and disruption of a defendant's life. In so holding, the
*Loud Hawk* majority was not impressed with arguments that the
government's public desire to prosecute, and the defendants' continued
need for the services of counsel, were sufficient to constitute "public
accusation" and preserve the relevance of the Speedy Trial Clause during
the interlocutory appeal: "\[T\]he Speedy Trial Clause's core concern is
impairment of liberty; it does not shield a suspect for every expense or
inconvenience associated with criminal defense."[^46]

The most recent Supreme Court case addressing the Speedy Trial Clause
reaffirmed the basic *Marion* building blocks, but with a twist. In
*Doggett v. United States*,[^47] the Court reversed the Court of Appeals
and held the defendant's speedy trial rights had been violated. While
restating the basic *Marion* tenet that the Speedy Trial Clause has no
applicability beyond the confines of a formal criminal prosecution,
*Doggett* did *Marion* one better by clarifying that the Sixth Amendment
protected more than a defendant's pretrial liberty, and that the effect
of pretrial delay on an accused's ability to defend at trial was also a
factor to be weighed in deciding whether the right to speedy trial had
been violated.[^48]

Notwithstanding *Doggett*, the Supreme Court cases starting with
*Marion* and *Barker* have made it clear that the core concerns of the
Sixth Amendment's Speedy Trial Clause are a defendant's personal
condition---liberty and freedom to pursue a vocation, disruption of life
and drain on financial resources, and personal anxiety and that of
family and friends. These concerns are present whenever a citizen is
under investigation or is considered a possible target of prosecution.
Notwithstanding, the Supreme Court has made it clear that the Speedy
Trial Clause is only relevant during an official prosecution, triggered
by formal arrest, information, or indictment.

B. Speedy Trial Under Article 10, U.C.M.J.

Prior to the adoption of the 1984 edition of the Manual for
Courts-Martial and, with it, Rule for Courts-Martial 707, speedy trial
accountability was governed by Article 10 in conjunction with the Sixth
Amendment. The government's responsibility began with the accused's
confinement or "formal presentment of charges."[^49] Although it has
been stated that Article 10 "reiterates" the Speedy Trial Clause of the
Sixth Amendment,[^50] the precise relationship between the Sixth
Amendment and Article 10 has never been delineated by the military
courts. However, because of the absence of bail in the military, it is
generally assumed that the protections of Article 10 are more rigorous
than those of the Speedy Trial Clause.[^51]

Article 10 of the U.C.M.J. (10 U.S.C. § 810 (1994)) states, in pertinent
part:

Any person subject to this chapter \[i.e., the U.C.M.J.\] shall be
ordered into arrest[^52] or confinement, as circumstances may require; .
. . .[^53] When any person subject to this chapter is placed in arrest
or confinement prior to trial, immediate steps shall be taken to inform
him of the specific wrong of which he is accused and to try him or to
dismiss the charges and release him.

How the United States Court of Military Appeals has applied this
statutory mandate---which, by its terms, applies only to military
members confined or in arrest prior to trial---has been an cyclical
exercise, starting with a blurry, *ad hoc* test, followed by a near
"bright line" standard, and then a return to the original *ad hoc*
analysis. The Court of Military Appeals' construction of Article 10 has
also been heavily influenced by the presence---or absence---of more
specific standards set out in the Manual for Courts-Martial.

Prior to 1971, the Court of Military Appeals held that Article 10's
requirement for "immediate steps\...to try \[an accused in pretrial
confinement or arrest\] or to dismiss the charges and release him" was
satisfied if the government could show "reasonable diligence" in
prosecuting the accused.[^54] This standard left room for leisurely case
processing: "\[T\]he touch stone for measurement of compliance with the
provisions of \[Article 10\] is not constant motion, but reasonable
diligence in bringing the charges to trial."[^55]

In 1971, the Court of Military Appeals decided *United States v.
Burton*,[^56] a landmark case in military speedy trial analysis under
Article 10, U.C.M.J., and abandoned "reasonable diligence" in favor of a
more discrete requirement. After applying the "reasonable diligence"
standard to the case at bar (and finding no Article 10 violation), the
*Burton* court accepted the appellate defense counsel's invitation to
adopt a new standard, one which was more amenable to objective
measurement. The court still rejected rigid time limits, and instead
adopted a rebuttable presumption as the test for Article 10 violations:
in the absence of defense requests for continuance, if an accused is in
pretrial confinement in excess of three months an Article 10 violation
is presumed. The prosecution could rebut this presumption by showing
diligence, but not easily: "In such cases \[of pretrial confinement
exceeding three months\], this presumption will place a heavy burden on
the Government to show diligence, and in the absence of such a showing
the charges should be dismissed."[^57] Moreover, regardless of the time
an accused had been confined, the *Burton* court held that, when an
accused demands a speedy trial, the government must proceed immediately
or show adequate cause for further delay.

From *Burton* until the adoption of the 1984 edition of Manual for
Courts-Martial---which brought with it Rule for Court-Martial
707---military speedy trial battles revolved almost exclusively[^58]
around the so-called "*Burton* presumption," soon modified from "three
months" of pretrial confinement to a more precise "90 days."[^59]
Because Article 10 only applied to cases of pretrial "arrest" or
"confinement," litigation soon focused on whether "stone walls a prison
make," that is, whether various of forms of pretrial restriction,
although not nominally "confinement," were tantamount to the stockade or
brig. If so, and the total of such "confinement" exceeded 90 days, then
the accused could claim a presumptive Article 10 violation.[^60]

Because the *Burton* presumption applied "in the absence of defense
requests for continuance,"[^61] litigation also frequently involved
controversies as to which party was accountable for particular periods
of delay, sometimes generating titanic courtroom frays over which side
was responsible for a handful of days---anything to get the government's
accountability over (or under) 90 days.[^62] Accounting could get
somewhat complicated when cases involved multiple charges, preferred at
different times.[^63]

The preeminence of *Burton* as the military speedy trial icon was
diminished by the adoption of Rule for Court-Martial 707 in 1984. R.C.M.
707 will be addressed in detail below. For now, suffice to say the
presence of this rule on the military speedy trial scene shifted the
litigation hub away from the *Burton* presumption, and eventually
prompted the Court of Military Appeals to reconsider the usefulness of
*Burton* in implementing Article 10.

In *United States v. Kossman*,[^64] the military trial judge had granted
a defense motion to dismiss the charges for violation of the accused's
right to speedy trial. The government's accountability for the accused's
pretrial confinement was less than 120 days (the R.C.M. 707 standard),
but more than 90 days. Notwithstanding compliance with R.C.M. 707, the
judge applied the *Burton* presumption, found a violation of Article 10,
and dismissed the charges. The prosecution pursued an interlocutory
appeal,[^65] and the Navy and Marine Corps Court of Military Review
affirmed the dismissal. The Judge Advocate General of the Navy then
certified the decision for review by the Court of Military Appeals.[^66]

The Court of Military Appeals took the opportunity presented by
*Kossman* to reexamine Article 10 and *Burton* in light of R.C.M. 707
and, by a three to two majority, overruled *Burton*. The majority
opinion explained that *Burton* had been decided in a procedural vacuum.
In 1971, there was no "mechanistic speedy trial template."[^67]
Therefore, a court-made rule was necessary to give a military accused's
right to speedy trial a practical standard for enforceability. However,
the majority characterized the *Burton* presumption as no more than a
"rough-and-ready rule of thumb"[^68] and "something of a crude stop gap"
which "occasionally created difficult results."[^69] The 1984 adoption
of R.C.M. 707 had set out a detailed matrix of speedy trial rules which
made the *Burton* presumption obsolete, or so the majority opinion
reasoned. Hence, the court returned Article 10 speedy trial analysis to
its pre-*Burton* state---the "reasonable diligence" standard.

While *Kossman* firmly established R.C.M. 707 at the center of military
speedy trial analysis, the court emphasized the obvious point that
Article 10 still held a position of supremacy over R.C.M. 707 in legal
hierarchy,[^70] and that R.C.M. 707 is not the "'know-all, be-all' of
speedy trial rules."[^71] Where it is established that the government
could go to trial much sooner than the arbitrarily selected times set
out in R.C.M. 707, the court made clear that a speedy trial motion based
solely on Article 10 would still lie.[^72]

Throughout the debate on the proper Article 10 standard, one constant
remained---no matter how the military courts have chosen to implement
Article 10, by its terms that statute only applies when an accused is in
arrest or confinement. Unless an accused is undergoing one of those
close forms of pretrial restraint, he or she may not look to Article 10
for speedy trial relief. Short of delays rising to the level of a Sixth
Amendment violation, military defendants not in such onerous restraint
must look to R.C.M. 707 as controlling their speedy trial rights.

## C. Speedy Trial Under Rule for Court-Martial 707

In Article 36(a), U.C.M.J.,[^73] Congress conferred authority upon the
President to establish procedural rules to implement the requirements of
the Code. The vehicle for the Presidential rules is the Manual for
Courts-Martial, an executive order containing rules of procedure and
evidence, as well as maximum sentence limitations[^74] and other
materials. There have been three major revisions of the Manual since the
adoption of the U.C.M.J., each corresponding to major legislation. The
1951 Manual[^75] followed the Military Justice Act of 1950,[^76] the
original Code enactment. The 1969 Manual[^77] was issued in response to
the Military Justice Act of 1968,[^78] the first major set of amendments
to the Code which, among other changes, created the position of the
"military judge" and the Courts of Military Review. The 1984 Manual[^79]
was promulgated after the Military Justice Act of 1983,[^80] which was
primarily directed at streamlining posttrial review of court-martial
convictions. In between these major revisions, the Manual has been
periodically amended by other Presidential executive orders,
consecutively numbered as "changes," culminating in 1995 with the
reissuance of the Manual as the "Manual for Courts-Martial, United
States (1995 ed.)." [^81]

Although not mandated by the Military Justice Act of 1983, R.C.M. 707
came into being as part of the 1984 Manual. It was designed as a
military analog to the Federal Speedy Trial Act,[^82] setting out
specific rules intended to protect an accused's speedy trial rights, as
well as command and societal interest in prompt administration of
justice.[^83]

In its original form, R.C.M. 707 required an accused to be brought to
trial within 120 days after "notice of preferral \[of charges\] under
R.C.M. 308 or imposition of pretrial restraint under R.C.M. 304,
whichever is earlier." The rule listed a number of specific situations
which would justify excluding time from the government's 120-day
countdown. It also included a special provision for members in pretrial
confinement or arrest, which, after a fashion, paralleled the *Burton*
rule. This provided that no one could be held in pretrial arrest or
confinement longer than 90 days, with a 10-day extension permitted upon
application to a military judge and a showing of extraordinary
circumstances. This part of the rule could be satisfied by releasing an
accused after 90 days, even if he or she has not yet been brought to
trial. However, the basic 120-day speedy trial "clock" would still be
running, having been triggered by imposition of restraint or notice of
preferral, whichever had come first.

R.C.M. 707 brought with it new controversies, along with some of the old
ones. In the latter area, the prosecution and defense still quibbled
over whether time should be excluded from government accountability, as
they had done and still did under the *Burton* presumption. Under R.C.M.
707, however, the parties had a specific series of "pigeon holes" to
fight over, the prosecution claiming one or more applied while the
defense argued the contrary.[^84]

However, one major area of contention in *Burton*-style speedy trial
litigation did not assume nearly the same importance under the original
version of R.C.M. 707. It was no longer paramount for the defense to
persuade the military judge to characterize pretrial restraint as
tantamount to "confinement" or "arrest," as the R.C.M. 707 120-day
"clock" was triggered by any form of pretrial restraint listed at R.C.M.
304(a). That rule describes four types of pretrial restraint. Arrest and
confinement (R.C.M. 304(a)(3) and (4), respectively) have been discussed
above. The other two forms of restraint under R.C.M. 304(a) are:

\(1\) *Conditions on liberty*. Conditions on liberty are imposed by
orders directing a person to do or refrain from doing specified acts.
Such conditions may be imposed in conjunction with other forms of
restraint or separately.

\(2\) *Restriction in lieu of arrest*. Restriction in lieu of arrest is
the restraint of a person by oral or written orders directing the person
to remain within specified limits; a restricted person shall, unless
otherwise directed, perform full military duties while restricted.

Although "restriction" as a triggering mechanism for the speedy trial
clock was new, this did not present many problems because it usually was
a conspicuous form of restraint. As a rule, everyone responsible for
administering the military justice system---senior commanders and,
especially, their staff judge advocates---knew when restriction had been
imposed and, hence, that the speedy trial clock was ticking.[^85]
However, "conditions on liberty" were another matter. It is not uncommon
for military supervisors, first sergeants, or unit commanders to order,
or strongly "advise" (which, in the military, can be pretty much the
same thing) a subordinate to do certain things, or to stay away from
certain people or places pending disposition of charges. In such cases,
it is far from certain that senior commanders or the staff judge
advocate would be informed. Indeed, in some cases, a supervisor may
impose the conditions and promptly forget he or she has done so. Hence,
the speedy clock would be ticking away and the officials supervising the
prosecution would not have the first clue about it.

As a result of "conditions on liberty" triggering the 120-day clock,
cases could be lost on speedy trial grounds before key personnel even
knew the clock was running.[^86] The extreme consequences of a R.C.M.
707 violation---dismissal of charges---for what were seen by many as
very limited restraints on pretrial freedom also produced some tortured
analysis to avoid pinning the label "conditions on liberty" on actions
which should have qualified.[^87] Change 2 to the 1984 Manual[^88]
provided the "fix" to this problem, by amending R.C.M. 707 to carve away
"conditions on liberty" as a type of restraint which would trigger the
120-day clock. This left confinement, arrest, and restriction as the
forms of pretrial restraint which would implicate an accused's speedy
trial rights under R.C.M. 707, a situation which has continued through
R.C.M. 707 in its current form.

While the "conditions on liberty" controversy was going on, the other
original R.C.M. 707 triggering device---notice of preferral of
charges---also became the subject of controversy. The rationale behind
having *notice* of preferral, as opposed to the act of *preferral*
itself, as the event which begins speedy trial accountability may be
traced to a fundamental principle of military law---that any military
member may prefer charges against another.[^89] Because preferral may be
an individual act, and not a governmental one, it was reasoned that the
government should not begin its speedy trial accountability until the
accused's commander formally notified him or her of the charges as
required by Article 30(b) of the Code.[^90] However, formal prosecutions
rarely result from charges preferred by military members in their
personal capacity.[^91] The overwhelming majority of charges are
preferred by commanders or other officers acting officially, based on
formal investigation and after advice from their staff judge
advocates.[^92] In such cases, the start of the R.C.M. 707 120-day clock
could be delayed, even after preferral of charges, simply by postponing
formal notice to the accused of the charges. This opportunity to
manipulate speedy trial accountability produced a flurry of litigation,
primarily out of the Navy.[^93]

The steady stream of judicial controversy over R.C.M. 707 resulted in a
major amendment in 1991, and produced the version currently in effect.
Change 5 to the 1984 Manual[^94] overhauled the rule to remove the most
frequent sources of litigation, and effected other major amendments as
well. R.C.M. 707(a) was changed to make *preferral* a triggering event
instead of *notice* of preferral. This eliminated any gap between these
two acts as a source of dispute over accountability, and was intended to
settle the starting points for the 120-day clock with certainty.[^95]
R.C.M. 707(c)'s "laundry list" of circumstances which would exclude
delay from government accountability was completely discarded in favor
of a simple "bright line" test: any delays caused by appellate courts,
or approved by the convening authority (prior to referral) or a military
judge (after referral), would be excluded from the government's
accountability, no matter which party requested or was responsible for
the delay. The adoption of a simple rule of government accountability
for all delays except those approved by judge or convening authority had
been strongly recommended by the United States Court of Military
Appeals,[^96] and eliminated the courtroom quibbling over responsibility
for delays which had dominated much of speedy trial litigation under
R.C.M. 707. [^97]

This new version of R.C.M. 707 also carried two more significant
differences from its predecessors. The provision requiring trial or
release within 90 days for members in pretrial arrest or confinement was
deleted, leaving Article 10 (soon to be governed by the *Kossman*
"reasonable diligence" standard instead of the *Burton* presumption) as
the only source of special protection for those undergoing close forms
of pretrial restraint. Further, the remedy for violations of R.C.M. 707
was altered to provide the government an "escape hatch" in certain
cases. If a rule violation occurred, the military judge was required to
dismiss the charges, just as in prior versions of the rule. Now,
however, the judge had the discretion to dismiss either with or without
prejudice, if the speedy trial violation was limited to the provisions
of R.C.M. 707 and did not reach constitutional magnitude.[^98]

Notwithstanding all the litigation and revision since R.C.M. 707's
adoption a decade ago, two constants remain---for an active duty
military member, it takes either a formal prosecution (i.e., preferral
of charges) or a form of pretrial restraint recognized under the rule
(either confinement, arrest, or restriction) to require the government
to account for the time it takes to get an accused's case to trial.[^99]
Any and all action short of these two "triggers" has no R.C.M. 707
consequences for the government, no matter how serious their effects on
the life and career of a military member.

In this regard, the law of speedy trial under R.C.M. 707 shares common
elements with its superior siblings, Article 10 and the Sixth Amendment.
Whichever source of law is applied, an accused must be formally charged,
or apprehended and held in a recognized form of pretrial restraint,
before his or her "right to speedy trial" assumes any relevance. In
cases like that of Sergeant Croker, the issue now becomes whether it is
possible to hold the government responsible, within the constraints
imposed by the law of speedy trial, for the delays in his case and the
actions taken against him during the process.

## IV. SPEEDY TRIAL ACCOUNTABILITY FOR

## PRE-PREFERRAL DELAY

Sergeant Croker was not apprehended and held---at least nominally---in
any form of pretrial restraint which triggered any speedy trial right
under the Sixth Amendment, Article 10, or R.C.M. 707. A formal ceremony
preferring charges did not occur until nearly two years after the death
of his daughter and the beginning of the administrative actions which so
profoundly affected his life and military career. To hold the government
accountable, under any speedy trial theory, requires arguments grounded
on creative constructions of the two triggering events under R.C.M. 707,
which is the most liberal (from an accused's point of view) of the three
legal authorities governing military speedy trial law. The first
argument relies on a doctrine of "constructive preferral" of charges,
which would start the government's speedy trial accountability under
R.C.M. 707(a)(1). The second hinges on a finding that the administrative
actions taken against military members like Sergeant Croker are, in
combination, tantamount to "restriction in lieu of arrest" under R.C.M.
304(a)(2), hence triggering the 120-day clock under R.C.M. 707(a)(2).

## A. Constructive Preferral

Constructive doctrine has been applied in military law in a number of
contexts, both substantive[^100] and procedural.[^101] In particular,
the doctrine has been utilized to negate a government manipulation of a
former loophole in R.C.M. 707 speedy trial standards. As described
earlier, prior to Change 5 of the 1984 Manual, the R.C.M. 707 speedy
trial clock was triggered by notice of charges, and not the act of
preferral itself. In passing on the practice of withholding formal
notice after preferral of charges, the United States Court of Military
Appeals in *United States v. Maresca*[^102] applied the maxim of
"\[e\]quity looks upon that as done which ought to have been done" and
held, under the circumstances of the case, that the accused had been
constructively informed of the charges within the meaning of Article
30(b).[^103] This held the government accountable under R.C.M. 707 for a
period beginning well before the notification date shown on the charge
sheet.

Under the present version of R.C.M. 707, where the act of preferral
triggers the clock, it would not be much of a stretch to extend
*Maresca*'s "constructive notice" to a "constructive preferral" under
the right circumstances. As was the case with Sergeant Croker's
prosecution, when the government has clearly progressed beyond
investigation, made a firm decision to prosecute, conducted itself in
all respects in a manner consistent with a formal prosecution, and is
merely delaying the preferral ceremony in order to avoid starting the
R.C.M. 707 speedy trial clock until it is ready to immediately proceed
to preliminary hearings and then to trial,[^104] it may be credibly
argued that charges should be held to have been constructively preferred
as of the date of the decision to prosecute.

The mere absence of a preferral ceremony should not negate government
speedy trial accountability. The formal acts of signing and swearing to
charges do not, in themselves, signify a governmental decision to
prosecute. As noted above, any military member can prefer charges. If a
commander, acting in an official capacity, is reluctant to prefer
charges, the installation staff judge advocate usually shops around
until he or she finds someone who will.[^105] A valid preferral ceremony
is not a prerequisite to court-martial jurisdiction. Defects in the
swearing procedure may be waived by an accused's failure to object at
trial.[^106] Moreover, a simple failure to object will waive a defective
preferral even when charges are completely unsigned and no attempt has
been made to administer an oath.[^107] In short, the formal preferral
ceremony of signature and oath are matters of form, not substance,[^108]
and should not be the *sine qua non* for speedy trial accountability.

On the other hand, there is no precedent in military law for a
"constructive preferral," and what precedent there is cuts against the
concept. In his lead opinion in *Gray*,[^109] Chief Judge Sullivan
rejected the trial judge's ruling that "charges" had actually been
pending at a point prior to the formal preferral ceremony, holding that
"charges are pending in the military justice system when charges are
preferred."[^110] Moreover, application of a constructive preferral
doctrine would be problematic, as a specific date to begin
accountability would prove elusive in many cases.[^111] In the final
analysis, "constructive preferral" is not an adequate theory for holding
the government accountable under R.C.M. 707 for pre-preferral delay.

## B. Actions Tantamount to "Restriction in Lieu of Arrest"

"Restriction in lieu of arrest" is simply and broadly defined as
"restraint of a person by oral or written orders directing the person to
remain within specified limits\...."[^112] Like its more severe cousin
of "arrest," "restriction" is moral and legal restraint only. A person
under "restriction" is not locked up or under guard. The only things
enforcing the restriction order are the member's conscience and the
knowledge that breaking the restriction would be an offense punishable
under the Code.[^113] The line between "restriction" and "arrest" has
never been precisely drawn by the military courts. However, the former
has been described as having "normally more generous boundaries" than
the latter.[^114] To constitute "restriction," an order need not
precisely draw the lines beyond which an accused would be in violation,
if he or she is "obviously restricted to some specified---albeit
indeterminate---limit."[^115]

Several of the measures taken against Sergeant Croker in the months
before formal preferral of charges would seem to qualify, either alone
or in combination, as "restriction." In particular, the involuntary
extension of his enlistment, the involuntary extension of his overseas
assignment, and the denial of his humanitarian reassignment while
granting that of his wife, thus forcing a family separation, would
appear to meet the simple definition of "restriction." In effect,
Sergeant Croker was ordered to remain within specified limits---that is,
the island on which his base was located---pending investigation and
trial. It may be argued that, under the broad definition of
"restriction," these actions were tantamount to that form of pretrial
restraint, thus triggering the government's speedy trial accountability
under R.C.M. 707(a)(2) at some point prior to the formal preferral of
charges.[^116]

Unfortunately for Sergeant Croker and other military members similarly
situated, there is a solid phalanx of military case law running contrary
to this argument. Limitations on leave and pass privileges, and other
requirements not nominally "restriction," have usually been held not to
constitute "restriction" for R.C.M. 707 purposes. [^117] "Administrative
hold" has been expressly held not to start the 120-day clock, even under
the version of R.C.M. 707 in effect before Change 5 when imposition of
"conditions on liberty" were enough to trigger speedy trial
accountability.[^118] Prior to R.C.M. 707, the military courts ruled
that involuntary retention beyond a member's separation date was not
tantamount to "arrest" and, therefore, did not invoke the *Burton*
presumption.[^119] There has been no case since the adoption of R.C.M.
707 analyzing whether involuntary retention beyond a date of separation
may be tantamount to "restriction."[^120] However, there is no reason to
believe the Court of Appeals for the Armed Forces would not extend its
*Burton*-era precedents to reject such an argument.

Similarly, the actions taken to keep Sergeant Croker out of his duty
section and restrict his access to the classified information necessary
to currency in his career field may not be credibly argued to constitute
"restriction." First of all, such measures on their face do not direct a
member to "remain within specified limits," as "restriction" is defined
at R.C.M. 304(a)(2). Moreover, the authority to control access to
sensitive programs, equipment, and information is of special importance
to military commanders. The military courts have been loathe to impose
any *per se* legal consequence (such as triggering the R.C.M. 707 speedy
trial clock) to any exercise of that authority. As has been stated by
the Air Force Court of Military Review:

Often considerations such special access programs, access to classified
information, or the sensitive relationship of the duties and the alleged
offense convince commanders that they should remove accused persons from
their prior duties pending investigation or trial, *even where they see
no need to order a R.C.M. 707 triggering event*.[^121]

Therefore, it appears the theory that administrative actions are
tantamount to "restriction in lieu of arrest" is a poor vehicle for
holding the government accountable for pre-preferral delay in cases like
that of Sergeant Croker. There is no published case where a military
member has been subject to a combination of as many actions for so long
a period of time before preferral as had Sergeant Croker. Therefore, the
cases running against the argument are distinguishable. Nonetheless, no
case has validated the argument and, short of another major revision of
R.C.M. 707(a) or a change in the definition of "restriction in lieu of
arrest" at R.C.M. 304(a)(2), it is not likely that any case will.

**C. The Government "Escape Hatch" in R.C.M. 707(d)**

Aside from the above problems, any theory, even a successful one, of
government accountability for pre-preferral delay tied exclusively to
R.C.M. 707 may well end up as a short-lived victory for an accused. As
described above, one of the major revisions to R.C.M. 707 brought about
by Change 5 to the 1984 Manual for Courts-Martial was a completely
rewritten subsection (d), which now allows a military judge to dismiss
charges for violation of the 120-day rule either "with or without
prejudice." Under the present version of R.C.M. 707(d), dismissal with
prejudice is mandated only if the speedy trial violation is of
constitutional magnitude. Therefore, even if the military courts adopted
a doctrine of constructive preferral, or the rules were changed to hold
that actions such as those imposed on Sergeant Croker triggered the
120-day clock, violations of R.C.M. 707 would still not necessarily
deprive the government of its ability to prosecute. Rather, a dismissal
without prejudice under R.C.M. 707(d) would end up only delaying the
prosecution while the government ginned up new charges, with a new
120-day clock, all the while continuing to impose career and personal
hardship on the accused.[^122] The only situation where a R.C.M. 707(d)
dismissal without prejudice would prevent further prosecution would be
the narrow class of cases where trial of new charges would be barred by
the statute of limitations.[^123]

The existence of the R.C.M. 707(d) "escape hatch" undermines the
deterrent effect of any speedy trial remedy tied solely to R.C.M. 707.
To mandate dismissal with prejudice, any theory of government
accountability for oppressive pre-preferral delay in the military
justice system must be tied to a source of law beyond the procedural
rules in the Manual for Courts-Martial. As we have seen, however, the
superior sources of military speedy trial law---Article 10, U.C.M.J.,
and Speedy Trial Clause of the Sixth Amendment--- both have ironclad
ties to either the pendency of formal charges or close forms of pretrial
restraint. Accordingly, the Sergeant Crokers of the American military
may not look for relief to theories associated with the law of speedy
trial. Rather, they must look to the compilation of constitutional and
statutory rights known as "due process."

V. THE LAW OF DUE PROCESS AND PRE-INDICTMENT/PREFERRAL DELAY

In the military justice system, two complementary, yet distinct, bodies
of law protect the rights of accused service members. These are the
rights which have been recognized under the umbrella of the Due Process
Clause of the Fifth Amendment to the United States Constitution, which
all Americans possess, and the rights uniquely applicable to members of
the United States military, collectively known as "military due
process."

## A. Military Due Process

For a time, both before and after the adoption of the Uniform Code of
Military Justice, a prevailing opinion among the courts was that the
Bill of Rights had little to no application in the military justice
system.[^124] In response, the military courts created by the U.C.M.J.
developed the doctrine of "military due process" to embody the rights
Congress had bestowed upon service members, and to illustrate that these
rights paralleled those conferred upon civilians by the Constitution. At
this time, Congress was considered as the sole source of "due process"
for military members.[^125] As the years went by, the military courts
increasingly applied the Bill of Rights and other constitutional
protections.[^126] Notwithstanding, "military due process" has remained
a vital and independent doctrine to this day.

"Military due process" was first announced in 1951, by the then-brand
new United States Court of Military Appeals, in the case of *United
States v. Clay*.[^127] The court's opinion described the source and
effect of the new doctrine as follows:

We do not bottom those rights and privileges \[comprising military due
process\] on the Constitution. We base them on the laws enacted by
Congress. But, this does not mean that we can not give the same legal
effect to the rights granted by Congress to military personnel as do
civilian courts to those granted to civilians by the Constitution or by
other federal statutes.[^128]

The *Clay* court then enumerated various rights bestowed by the Uniform
Code of Military Justice which it considered sufficiently fundamental to
be components of "military due process." These were service members'
rights to

\- Be informed of the charges.

\- Be confronted by witnesses against them.

\- Cross-examine witnesses for the government.

\- Challenge court members for cause or peremptorily.

\- A specified number of court members at general or special
courts-martial.

\- Be represented by counsel.

\- Not be compelled to incriminate themselves.

\- Exclusion of involuntary confessions.

\- Have the court members instructed on the elements of offenses, the
presumption of innocence, and the burden of proof.

\- Be found guilty only when a designated number of court members
concurred.

\- If convicted, a sentence agreed to by a specified number of court
members.

\- Appellate review of convictions.[^129]

In enumerating these aspects of "military due process," *Clay* made it
clear this list would not necessarily be the last word on the subject:
"By mentioning the foregoing rights and benefits, we have not intended
to make the list all inclusive, nor to imply others might not be
substantial."[^130] The military courts have reinforced this doctrinal
flexibility, by both words[^131] and decisions expanding the list of
rights encompassed by "military due process."[^132] To be included
within the doctrine, all that is required is an "act of Congress which
grants a *fundamental right* to a military accused . . . ."[^133]

In both very early and more recent decisions, the right of military
members to have charges properly signed under oath has been recognized
as sufficiently fundamental to be an element of "military due
process."[^134] Indeed, for accused soldiers in pretrial arrest or
confinement, a *delay* in preferral may raise "military due process"
implications.[^135]

The status of a procedural violation as being so fundamental that it
constitutes an infringement of military due process may be critical to
the ultimate fate of a prosecution. Unlike garden-variety errors, which
are tested for specific prejudice to an accused, "the concept of
'military due process' demands a finding that the denial was *per se*
materially prejudicial to the substantial rights of an accused. *No
search for prejudice is ever undertaken*."[^136] Such "\[d\]epartures
from fundamental requirements of law generally require reversal of the
findings of guilty without 'nice calculations as to the amount of
prejudice resulting from the error.'"[^137] Otherwise, the importance of
these fundamental rights would be diluted "by an assumption that
doubtful cases call for its \[i.e., the doctrine of military due
process\] protection but those appearing certain permit it to be
discarded . . . . We must reject such contentions as their adoption
would effectively eat away what Congress has declared to be military
justice."[^138]

Regrettably for military members in Sergeant Croker's position, there is
no precedent for pre-preferral delay as a violation of military due
process for persons not in pretrial arrest or confinement. In one case,
*United States v. Berrey*,[^139] the Navy and Marine Corps Court of
Military Review came close. In that case, decided under R.C.M. 707
before Change 5 to the 1984 Manual changed one of the clock triggers
from *notice* of preferral to the act of *preferral* itself, the court
held the government's intentional delay in notifying the accused that
charges had been preferred---notice withheld without good cause and for
the express purpose of avoiding the start of the 120-day
clock---violated military due process, requiring dismissal of the
charges. There is a major distinction between a case of pre-preferral
delay under R.C.M. 707 as it is presently written, and a delay in notice
of preferral under the former version of the rule. However, as we will
soon see, *Berrey*'s analysis supplies the foundation for holding that
unreasonable pre-preferral delay deprives military members of a
fundamental right conferred by Congress and, accordingly, constitutes a
violation of military due process.

## B. Due Process under the Fifth Amendment

This section begins with a discussion of the two key Supreme Court
decisions in this area. It will then proceed to two questions which the
Supreme Court has left unanswered, both of which have major significance
to defendants seeking dismissal of charges due to pre-indictment delay.
One of these assumes special importance to military members in Sergeant
Croker's position.

*1. The Cases of* Marion *and* Lovasco

As with the Speedy Trial Clause of the Sixth Amendment, any analysis of
the relationship between the Fifth Amendment's Due Process Clause and
pre-indictment delay must begin with the Supreme Court's 1971 decision
in *United States v. Marion*.[^140] In rejecting the application of the
Speedy Trial Clause to a three year delay between the alleged offenses
and indictment, *Marion* held that the statute of limitations, and not
the Constitution, was the primary guarantee against overly stale
charges. However, the Court qualified this general pronouncement by
stating that the statute of limitations did not fully define defendants'
rights prior to formal indictment, and that the Due Process Clause would
require dismissal of charges where pre-indictment delay "caused
substantial prejudice to \[defendants'\] rights to a fair trial and that
delay was an intentional device to gain tactical advantage of the
accused."[^141] The Court expressly declined to describe what
circumstances would require dismissal on due process grounds, explaining
that such a determination "will necessarily involve a delicate judgement
based on the circumstances of each case."[^142] The Court noted that the
defendants in *Marion* had not proven, or even alleged, any specific
prejudice or intentional delay by the government for tactical advantage.
The Court returned the case to the District Court for a hearing where
the defendants would have an opportunity to prove how they had been
harmed by the pre-indictment delay. In doing so, however, the Court
heavily hinted that it was prepared to tolerate considerable
investigative delay by police:

There is no constitutional right to be arrested. The police are not
required to guess at their peril the precise moment at which they have
probable cause to arrest a suspect . . . . Law enforcement officers are
under no constitutional duty to call a halt to a criminal investigation
the moment they have the minimum evidence to establish probable cause, a
quantum of evidence which may fall far short of the amount necessary to
support a criminal conviction.[^143]

*Marion* set the stage for United States v. Lovasco,[^144] a 1977 case
which represents the Supreme Court's most significant treatment of the
pre-indictment delay issue. In *Lovasco*, 18 months passed between the
defendant's alleged offenses and his indictment. According to evidence
presented to the District Court, the investigation had been essentially
completed about one month after the offense, with very little more
accomplished in the succeeding 17 months prior to indictment. The
defendant moved to dismiss the indictment on due process grounds,
claiming he had been harmed by the pre-indictment delay because of the
deaths of two persons who would have testified on his behalf. The
District Court granted the defendant's motion to dismiss, finding the
delay unexplained, unjustified, and prejudicial to the defendant. The
Circuit Court of Appeals affirmed. The Supreme Court, however, reversed.

In overturning the lower courts' decisions in *Lovasco*, the Supreme
Court reaffirmed principles, announced in *Marion*, that the Sixth
Amendment Speedy Trial Clause did not apply to pre-indictment delay and
the statute of limitations was the primary protection against overly
stale charges. The Court also echoed *Marion* in recognizing that the
Fifth Amendment Due Process Clause also affected the pre-indictment
delay issue. However, Justice Marshall, writing on behalf of an 8 to 1
majority,[^145] watered down this aspect of *Marion* by describing the
Due Process Clause as having only "*a limited role* to play in
protecting against oppressive delay."[^146]

Although remarking that the defendant never revealed how the testimony
of either deceased would have aided his defense, the Court acknowledged
that he had demonstrated some harm because of the deaths of the two
potential witnesses. The Court held, however, that prejudice to an
accused was only half the pre-indictment delay story; in deciding
whether such a delay violated due process, courts must also consider the
*reasons* for delay, and do so with a hefty measure of deference to
prosecutors:

\[The\] Due Process Clause does not permit courts to abort criminal
prosecutions simply because they disagree with a prosecutor's judgement
as to when to seek an indictment. Judges are not free, in defining "due
process," to impose on law enforcement officials our "personal and
private notions of fairness . . . . "[^147]

The Court then announced a guiding principle for applying the Due
Process Clause to pre-indictment delay. To warrant relief, such delay
must violate "'fundamental conceptions of justice which lie at the base
of our civil and political institutions,'\...and which define 'the
community's sense of fair play and decency,'. . . . "[^148]

Applying this principle to the case before it, the Court found no
violation of due process. Quoting with approval *Marion*'s declaration
of "no constitutional right to be arrested," the Court in *Lovasco*
extended this principle to a prosecutor's decision to indict. The Court
reasoned that a due process requirement for prompt indictment after
obtaining sufficient evidence to prove an accused's guilt beyond
reasonable doubt would hamper continuing investigations into connected
cases, as well as pressure prosecutors into early, and perhaps
unwarranted, indictments. Describing investigative delay as
fundamentally unlike that designed to gain a tactical advantage over a
defendant, the Court held that the delay in obtaining the indictment
against Lovasco did not violate "fundamental conceptions of justice,"
notwithstanding the death of two potential defense witnesses. Neatly
summarizing its holding, the Court stated: "We therefore hold that to
prosecute the defendant following investigative delay does not deprive
him of due process, even if his defense might have been somewhat
prejudiced by the lapse of time."[^149]

In the wake of *Marion* and *Lovasco*, we can make a few generalizations
about how pre-indictment delay (or, in the military context,
pre-preferral delay) may constitute a violation of the Due Process
Clause of the Fifth Amendment. First, prejudice must be demonstrated by
the accused. It will not be presumed or made the subject of speculation.
Second, prejudice to an accused by itself will not support a due process
violation. The harm must be balanced against the government's reasons
for delay. Third, in weighing the reasons for delay, the courts will
tolerate considerable "investigative" delay, even when not much actual
investigation is accomplished. These conclusions obviously lead to
another one---cases dismissed because of pre-indictment delay will be
few and far between. Nonetheless, the opportunity remains for an accused
to make a case that such delay has been so oppressive as to deprive him
or her of due process.

*Marion* and *Lovasco* remained ambiguous in two respects which are
important to defendants' ability to prove violations of due process. The
first area, equally significant in both civilian and military
prosecutions, is whether a defendant must prove an improper motive on
the part of the government in delaying the indictment or preferral. The
second, which is of particular importance in the military justice
system, is whether the prejudice recognized as raising a due process
claim is limited to harm to an accused's ability to put on a defense at
trial, or may it also include damage to an accused's personal and
professional welfare.

*2. Is "Improper Motive" Required to Violate Due Process?*

Both *Marion* and *Lovasco* clearly stated that deliberate
pre-indictment delay, intended by the government to gain a tactical
advantage over an accused, would supply the foundation for finding that
due process had been violated.[^150] However, neither opinion made clear
whether proof of improper motive was an absolute prerequisite for such a
violation. As a result of this ambiguity, the federal circuits have
disagreed over this issue, a split which the Supreme Court so far has
declined to resolve.[^151]

A plurality of the circuits require a defendant to prove a deliberate
delay to gain tactical advantage, an intent to harass, or some other
improper motive, in addition to actual prejudice, in order to support a
due process violation; however, the decisions within these circuits have
not consistently taken this line. The First,[^152] Third,[^153]
Fifth,[^154] Tenth,[^155], and Eleventh[^156] Circuits fall in this
category.

Two circuits---the Fourth and the Ninth---have not required defendants
to prove deliberate delay for an improper motive as a prerequisite to
making their case for due process violations. Rather, these circuits
apply a two-part balancing test: the accused must first prove actual
prejudice from the pre-indictment delay; if there is prejudice, then the
extent of the harm is balanced against the government's reasons for
delay to determine if the delay violates the "'fundamental conceptions
of justice which lie at the base of our civil and political
institutions,'\...and which define 'the community's sense of fair play
and decency.'"[^157] This test would analyze pre-indictment delay on a
case-by-case basis, balancing the length of the delay and harm to the
accused against the government's reasons. The longer the delay and the
greater the prejudice, the heavier the government's burden to explain
the delay. Deliberate delay to harass or gain tactical advantage is not
*per se* required for a due process violation. However, if there is an
improper government motive, a lesser amount of prejudice may tip the
scales in favor of a due process violation than if the delay were the
product of benign neglect. Regardless of the reasons for the
pre-indictment delay, the defendant must first prove he or she suffered
harm from the delay.[^158]

The decisions in the remaining federal circuits are too contradictory or
unclear to reach a confident conclusion on where these circuits stand on
the issue of improper motive as an essential element of the test for due
process denial. In several cases, circuit panels have simply refused to
choose between requiring a showing of improper motive or adopting the
flexible, balancing approach.

In the Second Circuit, the opinions are a mixture. Some are clear
pronouncements requiring deliberate delay for an improper reason.[^159]
Others contain indecisive or ambiguous statements which leave the issue
open for argument.[^160]

Most of the Sixth Circuit opinions require the accused to show a delay
was deliberately undertaken for tactical advantage.[^161] However, a
pair of contrary opinions frustrates any confident conclusion that the
Sixth Circuit would absolutely require an improper motive before finding
pre-indictment delay to have violated due process.[^162]

The Seventh Circuit appears to be thoroughly indecisive on the issue.
Several cases require deliberate delay for tactical advantage.[^163]
However, others expressly reject improper motive as a mandatory element,
and adopt the balancing test.[^164] Another opinion implies a balancing
test once an accused proves prejudice.[^165] Often Seventh Circuit
panels have steadfastly declined to select between a test with improper
motive as a mandatory element, and the more flexible test where the
government's reasons are balanced against the harm suffered by the
accused. In these cases, the Seventh Circuit discussed both tests at
length before concluding the defendants' failure to prove actual
prejudice would cause them to lose under either approach, thereby
avoiding the necessity of making a choice.[^166]

The majority of Eighth Circuit cases favor the balancing test.[^167]
However, in three instances, and possibly a fourth, circuit panels
stated the test as including a mandatory showing of intent to harass,
gain tactical advantage, or achieve another improper purpose.[^168]

Finally, the District of Columbia Circuit has gone a completely
different way. In an unpublished opinion, which apparently is the only
time this circuit has addressed the issue, the court held that no due
process violation occurred from pre-indictment delay because there was
no evidence of "deliberate attempt to gain an unfair tactical advantage"
or "reckless disregard of probable prejudicial impact."[^169] While not
nearly as favorable to a defendant as the balancing test discussed
above, the D.C. Circuit standard would still not foreclose relief solely
due to an accused's failure to prove a deliberate government delay based
on an improper motive.

The military authorities are also muddled in defining the elements of
the *Marion-Lovasco* due process test, including whether proof of an
improper government motive is mandatory. The Court of Military Appeals
(now the Court of Appeals for the Armed Forces) has addressed
pre-preferral delay as a potential violation of the Due Process Clause
several times, with inconclusive results. In *United States v.
Rachels*[^170] and *United States v. McGraner*,[^171] the court
acknowledged that pre-preferral delay could violate due process, but
summarily rejected the appellants' claims without extended analysis. In
*United States v. Vogan*,[^172] the court addressed the matter more
directly. In *Vogan*, the accused was an inmate at the United States
Disciplinary Barracks[^173] who, among other arguments, contended his
Fifth Amendment due process rights were violated by the delay between
alleged offenses he committed as a prisoner and the date charges were
preferred. Although noting that the Supreme Court had not provided
specific guidance on the precise test for a due process violation, the
court relied on passages from *Lovasco* to hold that no violation had
occurred:

"\[A\] 'tactical' delay . . . 'incurred in reckless disregard of
circumstances, known to the prosecution, suggesting that there exists an
appreciable risk that delay would impair the ability to mount an
effective defense'" would amount to a due process violation. We hold
there was no violation of due process since no evidence has been
presented to show an egregious pretrial delay or that appellant was
unable "to mount an effective defense" due to the delay.[^174]

*Vogan*'s reliance on this language from *Lovasco* suggests that an
improper motive, or at least a reckless disregard of circumstances
prejudicing an accused's ability to put up defense, may be a required
element for proving a due process violation. However, the court does not
state that such circumstances are the *only* ways to demonstrate such a
violation. Considering, as *Vogan* conceded, the lack of clear direction
from the Supreme Court, *Vogan* cannot be considered as settling
military law on the issue of whether improper motive is *per se*
required.

The Court of Appeals for the Armed Forces had a golden opportunity to
resolve this ambiguity in the 1995 case of *United States v.
Reed*.[^175] Instead, the case produced a set of unclear and fragmented
opinions which did little to clarify the question of whether an accused
must prove "improper motive" as an element of a claim of due process
violation.

*Reed* arose out of the rape of a sailor in Orlando, Florida, hotel room
in November 1991. Several sailors, assigned to different ships, were
present and the victim was unsure of her assailant. She did not report
the attack until January 1992, and the Naval Investigative Service
("NIS") opened an investigation in March 1992. By this time, the various
sailors involved, including Seaman Reed, were deployed with their ships
throughout the world. The NIS investigation closed out in December 1992,
but was reopened for follow-up investigation in January 1993. The
investigation closed out for the last time in September 1993. Charges
were preferred against Reed later that month. Also, he was put on "legal
hold" for a period of 23 days before preferral. This resulted in an
involuntary extension of Reed's enlistment and denial of opportunity to
test for promotion. The charges were investigated under Article 32,
UCMJ, and referred to trial.

At trial, Seaman Reed moved to dismiss the charges, asserting the
pre-preferral delay violated due process. The military judge agreed and
dismissed the charges. The government appealed the dismissal, and the
Navy-Marine Corps Court of Military Review reversed. The accused
appealed this decision to the Court of Appeals for the Armed Forces.
That court affirmed the Court of Military Review in a 3-2 decision,
Judge Crawford writing for the majority and Judges Sullivan and Wiss
filing separate dissents.

The majority opinion held that, to make out a due process violation for
pre-preferral delay, the accused had the burden of proving both an
"egregious or intentional tactical delay and actual prejudice,"[^176]
and held that he had proven neither. In holding the first element
unproven, the majority relied largely on the difficulties in
coordinating the NIS investigation among several widely separated ships.
Concerning the prejudice element, the majority noted the accused had
asserted only an inference of prejudice in the form of faded witness
memories, which was insufficient to satisfy this prong of the due
process test. In its limited analysis, the majority did not elaborate on
what would constitute "egregious" delay. Moreover, the majority omitted
any discussion of whether personal or professional hardship could be
considered under the prejudice prong, making only a passing reference to
the accused's brief period on "legal hold" and its consequences.

In his brief dissenting opinion, Judge Sullivan did not address the
standard for making out a due process violation or independently analyze
the case. Instead, Judge Sullivan referred to the military judge's
findings (attached as an appendix to the opinion) and, applying an abuse
of discretion standard of review, opined that those findings established
a due process violation. However, in that the military judge did not
find the prosecution had a "bad motive" in delaying the preferral, it
may be inferred that Judge Sullivan would not require an accused to
prove such a motive as an element of the alleged due process violation.

In his more extensive dissent, Judge Wiss squarely addressed the issue
side-stepped by both the majority and Judge Sullivan: ". . . the proper
legal test to be applied to a claim that an accused was denied due
process as a result of pre-preferral delay."[^177] Concerning the first
prong of the test stated by the majority, Judge Wiss interpreted that
opinion as requiring proof of a bad motive, although he allowed that the
majority was ambiguous on that point and may have anticipated that
"egregious" delay would include circumstances other than intentional
delay for tactical advantage. In any case, Judge Wiss disputes the
majority's imposition on the accused of a burden to prove the
prosecution's motive. On this first element of the due process standard,
Judge Wiss neatly summarized his view:

> Thus, unlike the majority, I would not place the burden on the accused
> to divine and demonstrate the Government's reasons for its delay in
> preferring charges; that does not seem to me to be common sense. Also
> apparently unlike the majority, I would not block myself as a matter
> of law from finding a denial of due process in any particular case
> just because the delay resulted from something like the Government's
> gross negligence or recklessness, as opposed to bad motive.[^178]

Concerning the prejudice element of the test, Judge Wiss also found the
majority opinion ambiguous as to whether such prejudice was limited to
the ability to defend at trial. However, Judge Wiss interpreted the
majority as imposing that limitation and, without elaboration, agreed
that personal or professional hardship should not be considered when
addressing an alleged due process violation.

Regardless of the correctness of the *Reed* majority's standard, Judge
Wiss considered that opinion as establishing a test that had not been
applied by the military judge at trial. Accordingly, Judge Wiss would
have remanded the case to the military judge for rehearing in accordance
with the majority opinion.

After *Reed*, the Court of Appeals for the Armed Forces has remained
equivocal whether proof of an improper prosecution motive was required
to prove a due process violation. It is clear from the *Reed* opinions
that Judges Sullivan and Wiss were opposed to such a requirement, but
the converse was not clear from the majority opinion. The following year
(after Judge Wiss' death and before the appointment of Judge Effron),
the court had another opportunity to clarify the standard, in the case
of *United States v. Niles*.[^179] The majority of the court (as per
Judge Sentelle of the District of Columbia Circuit, sitting temporarily
by designation[^180]), avoided the issue by reversing the conviction on
another ground. However, the majority opinion noted in passing that the
record showed the accused's ability to defend at trial may have been
affected by the pre-preferral delay and that the record raised the
specter of deliberate prosecution delay to obtain tactical advantage.
Judge Gierke filed a dissent, joined by Judge Crawford, which, among
other disagreements with the majority ruling, opined that the
pre-preferral delay issue should have been addressed and rejected
because there had been no prejudice to the accused or intentional
tactical delay by the prosecution.

Judges Gierke and Crawford were in the *Reed* majority and their *Niles*
dissent is a fair indication that they are in the "bad motive" camp. But
Chief Judge Cox, also a member of the *Reed* majority, has not yet
clarified his view whether *Reed*'s "egregious or tactical delay"
standard permits something other than prosecution bad faith as a basis
for finding a due process violation in pre-preferral delay. With Judge
Sullivan in apparent agreement with Judge Wiss' *Reed* dissent and Judge
Effron still to be heard on this subject, the precedent in this area
from the Court of Appeals for the Armed Forces remains uncertain.

The opinions of the services' Courts of Military Review and Courts of
Criminal Appeals have been similarly equivocal. The Air Force court has
not expressly analyzed this issue. However, it has suggested that the
test for pre-preferral delay as a due process infraction is oriented
toward prejudice to the accused, and not necessarily the government's
motive for the delay.[^181] The Army court has made a similar suggestion
in dictum.[^182] The Navy-Marine Corps court has written on the
pre-preferral delay issue more often. In two cases, that court simply
acknowledges that pre-preferral delay may raise due process
implications, but summarily dismisses the appellants' claims without
analysis of the test for violation.[^183] In another case, there is an
indication that the test should be "prejudice oriented."[^184] In its
two most recent published cases on the pre-preferral delay
issue---*United States v. Reeves*[^185] and *United States v.
Devine*[^186]---the Navy-Marine Corps court described the net effect of
*Marion-Lovasco* as follows: "What is required to substantiate a due
process claim is proof of actual prejudice to the accused and a
consideration of the reasons for delay."[^187] This language strongly
implies a balancing test where the harm to the accused is balanced
against the government's explanation for the pre-preferral delay,
without requiring deliberate delay for tactical advantage or another
invidious reason as a prerequisite to relief. However, this conclusion
is undercut by the *Reeves* opinion, which went on to acknowledge the
split of authority among the federal circuits concerning the requirement
of improper motive, and expressly declined to make a choice. Instead,
the *Reeves* court (like so many of the Seventh Circuit cases) simply
held that the accused would lose regardless of the test applied.[^188]

In summary, the federal and military courts have not reached a reliable
consensus whether to interpret *Marion* and *Lovasco* to require proof
of an improper motive before finding that pre-indictment or
pre-preferral delay violates the Due Process Clause. The weight of
opinion appears to be in favor of improper motive as a mandatory element
of the test. However, the authority is far from conclusive. The military
courts remain free to select the test that best satisfies the interests
of justice and reflects the unique aspects of military society.

*3. What Kind of "Prejudice?"*

*Marion* and *Lovasco* both considered prejudice which allegedly
affected defendants' ability to defend themselves at trial. All civilian
cases addressing pre-indictment delay have involved questions of
prejudice which focused on factors undercutting a defendant's chances
for a successful defense, or otherwise subjecting him or her to
disadvantage when coming into court. Faded memory,[^189] lost
evidence,[^190] inability to reconstruct events,[^191] an intervening
state conviction,[^192] sentencing implications including denial of
opportunity to serve federal and state sentences concurrently,[^193] and
the ever popular dead or missing witness(es)[^194] have all been
asserted as reasons that pre-indictment delay has violated due process,
all with little success.[^195] But what about the effects of such delay
on a defendant *personally*---on his or her personal, professional and
financial well being? May this kind of harm play a part in proving the
"prejudice" prong, which is common to all variants of the
*Marion-Lovasco* test?

The civilian cases clearly say "no." General notions of "mental anguish"
have been seen as more pertinent to post-indictment speedy trial claims
under the Sixth Amendment, and have been summarily dismissed as
irrelevant to pre-indictment delay issues under the Fifth Amendment Due
Process Clause.[^196] This is completely consistent with the principle,
stated by the Supreme Court in *Marion*, that the Sixth Amendment's
Speedy Trial Clause is the constitutional provision which is intended to
shield a citizen from oppressive delay which "may disrupt his
employment, drain his financial resources, curtail his associations,
subject him to public obloquy, and create anxiety in him, his family,
and his friends."[^197] For a civilian defendant, short of a condition
which impacts his or her ability to defend in court,[^198] personal,
professional, or family hardship caused by a pre-indictment delay will
not count toward establishing a due process violation. "In sum, the
defendant must demonstrate that the prejudice *actually impaired his
ability to meaningfully present a defense*."[^199]

This conclusion is not surprising and, in the civilian context, quite
proper. After all, in the civilian world, the state's prosecutors and
police are powerless to affect a citizen's life and livelihood---absent
an arrest, indictment, or other action which triggers his or her Sixth
Amendment speedy trial rights.[^200] The military, however, is far a
different society. Military commanders have vast discretion to inflict
serious harm to members of their command, based only on a suspicion they
may have committed offenses, and without any speedy trial accountability
under the Sixth Amendment, Article 10 of the U.C.M.J., or Rule for
Court-Martial 707.

Is the ability of *military* members to prove a denial of due process,
like that of their civilian counterparts, strictly limited to matters
impairing an effective defense? A pair of Air Force commentators has
suggested that "the myriad administrative difficulties a military
'suspect' may encounter, *e.g.*, revocation of a security clearance,
administrative hold, relief from duty, and withholding of promotion"
should be considered in assessing the severity of prejudice suffered by
an accused from pre-preferral delay.[^201] However, the military courts
have not followed up on this suggestion.

In *United States v. Vogan*, the Court of Military Appeals disagreed
with the argument of the appellant (a military prisoner in
administrative segregation for several months before formal preferral of
charges) that his due process rights had been denied by the
pre-preferral delay, where "no evidence has been presented to
show\...that appellant was unable 'to mount an effective defense' due to
the delay."[^202] In *United States v. Reeves*, the Navy-Marine Corps
Court of Military Review expressly rejected personal hardship as a basis
for a claim that pre-preferral delay violated due process: "The form of
prejudice with which the \[Supreme\] Court was concerned in *Marion* and
*Lovasco* was the accused's ability to present a defense without being
substantially hampered by a lapse of time."[^203] As discussed earlier,
a majority of the Court of Appeals for the Armed Forces in *United
States v. Reed*[^204] appears to have adopted this viewpoint, although
not without still more ambiguity. As noted in Judge Wiss' dissent, the
*Reed* majority does not clearly state that the prejudice element is
limited to that which affects an accused's ability to defend at trial,
but Judge Wiss interpreted to so state and agrees with that aspect of
the majority opinion.[^205]

From the above, it is apparent that the current state of military
authority is not promising for military members, like Sergeant Croker,
who would seek a remedy for oppressive pre-preferral delay involving
"the myriad administrative difficulties" piled on by their commanders
during the period. However, no military court has yet addressed a case
of an accused who has been personally and professionally damaged by
pre-preferral delay to a degree and for a time remotely approaching that
inflicted on Sergeant Croker.[^206] Accordingly, the suggestion is open
that personal, family, and professional damage suffered during a period
of pre-preferral delay may be so severe that it becomes relevant to
whether such delay violates "fundamental conceptions of justice which
lie at the base of our civil and political institutions and which define
the community's sense of fair play and decency." The military appellate
courts await the right "Sergeant Croker" to step up to the bar.

## 

## VI. REMEDIES FOR OPPRESSIVE PRE-PREFERRAL DELAY

Up to this point, this article has illustrated the potential for
injustice presented by lengthy pre-preferral delay, when coupled with
administrative actions which have no speedy trial consequences for the
government, but nonetheless inflict substantial damage on the lives and
careers of military members. The foundations for a solution to this
institutional flaw in the military justice system are present in
military law. Refinements to either the law of "military due process,"
or the application of the Fifth Amendment's Due Process Clause in the
military context, would provide the means for military members to hold
the government accountable for unreasonable and oppressive delays in
formalizing its court-martial prosecutions.

## A. The "Military Due Process" Test

It should be a violation of military due process for the government to
(1) deliberately withhold preferral of charges, (2) for an unreasonable
period of time, (3) after it has made a firm decision to prosecute an
accused, and (4) after the accused has demanded a prompt preferral of
charges. If the government's actions violate military due process
according to this test, then charges should be dismissed without
requiring a showing of prejudice by the accused.

The legal basis for a deliberate delay in withholding preferral as a
violation of military due process may be found in the Court of Military
Appeals' decision in *United States v. Clay*, which announced the
doctrine of "military due process" and listed an accused's right "\[t\]o
be informed of the charges against him" as the first element of the
doctrine.[^207] This right necessarily implies that "charges" have been
properly preferred. Other military court opinions support the
proposition that military due process also includes a right to have
charges properly signed under oath.[^208]

The military due process implications should be especially clear when
the government fails to properly sign and swear to charges in order to
avoid triggering its speedy trial accountability, yet in all practical
respects treats the case as an on-going prosecution. The Navy-Marine
Corps Court of Military Review recognized the connection between
military due process and government attempts to evade speedy trial
responsibility in *United States v. Berrey*.[^209] In *Berrey* (decided
before Change 5 to the 1984 Manual for Courts-Martial, when the R.C.M.
707 clock was triggered by *notice* of preferral as opposed to the *act
of preferral* itself), the court held that the government had violated
military due process when it had delayed notice of preferral. The court
explained its ruling as follows:

\[W\]here the Government deliberately delayed notifying the appellee of
the charges preferred against him, as is required by Article 30(b),
UCMJ, because it did not want to start the running of the speedy trial
clock under R.C.M. 707, such intentional deferral of notification was a
denial of a significant procedural requirement relating to the
appellee's fundamental right to a speedy trial. This is so because the
President, in prescribing R.C.M. 707, chose the 'notification of
preferral of charges' as the triggering event to start the speedy trial
clock. Thus, in its elevated state, the Article 30(b), UCMJ, requirement
that such notification be given as soon as practicable, takes on greater
procedural significance and becomes integrated into the R.C.M. 707
speedy trial scheme. Violation of this substantial procedural
requirement, under these circumstances, constitutes error materially
prejudicial *per se* to the substantial rights of the accused.[^210]

The Change 5 amendment to R.C.M. 707 does not alter the effect of
*Berrey*'s analysis. Simply replace references in the above quotation to
"notification of preferral" and "Article 30(b)" with "preferral" and
"Article 30(a)," and *Berrey* makes equal sense. The ultimate point of
*Berrey* is that the government, when it is otherwise ready, willing,
and able to prosecute, may not manipulate events to avoid speedy trial
accountability without violating an accused's right to military due
process. This should be the law, regardless of whether the R.C.M. 707
clock is triggered by "preferral" or "notification of preferral."

The proposed test will deter such manipulations, and hold the government
accountable for unreasonable pre-preferral delay, while not imposing an
unrealistic burden on the government. The "demand" element of the
proposed test would put the initial burden on the accused to complain
about the delay. This demand could take the form of a formal complaint
to an inspector general,[^211] to a Member of Congress,[^212] or under
Article 138, U.C.M.J.[^213] However, a simple letter from the member to
his or her commander would also suffice. Requiring a demand for a prompt
preferral as a prerequisite to later claiming a denial of military due
process also recognizes that pre-preferral delay, just like
post-preferral/indictment delay, is not always detrimental to an
accused. In contrast to Sergeant Croker, if a military member is not
enduring significant hardship while awaiting for the initiation of
formal prosecution, it would rarely be in his or her best interest to
demand preferral. Even if the member's commander has initiated
significant administrative actions against him or her, the member may
still find it better not to push the government into doing something it
might not do, if left to make the decision without prodding. In any
case, if members are not willing to invoke military due process by such
a demand at the outset, they should not be heard to complain later that
their commanders failed to honor that principle by delaying preferral of
charges. The "demand" prong of the test would also serve to raise an
inference that further significant delay is deliberate, as opposed to
the product of neglect or inattention.

If a military member makes a demand for prompt preferral, the burden
would then shift to the government to prove that delay between the
demand and preferral did not violate military due process. To violate
military due process, delay in preferral would have to be *deliberate*,
*unreasonable* in length under the circumstances, and follow a *firm
decision to prosecute*.

Delay due to good faith investigation directed at whether or what
offenses to prosecute would not run afoul of military due process, nor
would good faith delay occasioned by connected prosecutions involving
multiple accused.[^214] However, "investigation" by prosecuting
attorneys to round out their case or fill in holes revealed by their
proof analysis would not serve as an excuse for unreasonable delay in
preferral after a demand by an accused.

The government's firm decision to prosecute, prior to a formal
preferral, could be shown by an express admission (such as occurred in
the Croker case) or by inference from government actions which are only
consistent with an on-going formal prosecution. Examples of the latter
can be seen in both the Croker case and *Berrey*. Administrative actions
which are justified by "pending" court-martial "charges", and
correspondence concerning discovery, expert assistance, and witness
attendance by signed lawyers calling themselves "Trial Counsel" and
"Government Representatives," all are strong indicators that the
government is pressing a *de facto* court-martial prosecution, with the
only element missing being a formal preferral ceremony.

Whether the length of a delay after a demand is "unreasonable" would
depend on the facts of each case. Following the reasoning in *Berrey*
and the logical inference that delay not patently justified by
investigation is motivated by a desire to avoid triggering the R.C.M.
707 clock, the more the post-demand delay exceeds 120 days, the more
likely the delay will be looked upon as "unreasonable." Here also is
where the nature and extent of any administrative sanctions imposed
against the accused would come into play. The more sanctions, the more
likely any post-demand delay will be seen as "unreasonable."

This "military due process test" for pre-preferral delay is an
innovative test, requiring a significant extension of existing case law.
It is also a very advantageous one for the military accused, for two
reasons. First, it requires only a demand from an accused before the
burden of proof shifts to the government. Second, as with any issue of
military due process, the accused would not have to prove any harm
before a violation would require dismissal of charges. For these
reasons, such a test would not be an attractive option for the military
courts. However, these same attributes would also make the "military due
process test" the most effective deterrent of oppressive government
conduct. In particular, unless a military member's commanders are
confident that preferral of charges will occur within a foreseeably
short period, they will think carefully before imposing a great many
administrative sanctions lest they prompt a demand for preferral from
their troop.

## B. The Fifth Amendment Due Process Test

The foundations for the proper application of the *Marion-Lovasco* test
in the military are in existing case law. The task before the military
courts, given the proper set of facts, is to reexamine their precedents,
resolve ambiguities, and firm up a test which properly interprets
*Marion* and *Lovasco* and incorporates the realities of the military
environment. This means adopting a test that balances the prejudice to
an accused against the government's explanation for the delay, without a
*per se* requirement that an accused show an improper motive behind the
delay. It also means considering personal, family, and professional harm
suffered by the military member because of the pre-preferral delay, as
well as any impairment of his or her ability to mount an effective
defense.

*1. Rejecting "Improper Motive"*

Adoption of a balancing test, and rejection of improper motive as a
mandatory component of a due process violation, reflect the better
analysis of Supreme Court precedent, as well as a more realistic view of
the odds facing an individual citizen who is pitted against the power of
the state. In *United States v. Townley*, a panel of the Fifth Circuit
Court of Appeals expressly rejected the argument that a defendant must
prove an improper motive in every case:

*Lovasco* and *Marion* do not stand for the proposition that
"governmental interests not amounting to an intentional tactical delay
will automatically justify prejudice to a defendant." Here, the
*Lovasco* balancing test would be reduced to mere words, if indeed the
government's 41-month delay in bringing the indictment were excusable,
whatever the prejudice caused the defendant, simply by a showing that
the government was negligent, however grossly, and not
bad-intentioned.[^215]

The *Townley* theme was reiterated not long ago by the United States
District Court for the Southern District of Texas. Although its
reasoning was destined to fall on deaf ears at the Court of Appeals, the
District Court eloquently rejected improper motive as a mandatory
prerequisite to relief for excessive pre-indictment delay:

In this Court's opinion, this is not, and should not be, the law. The
due process protection of the Fifth Amendment was enacted, as part of
the Bill of Rights, to protect citizens from the power of the federal
government; it is restraint on improper government action, including
prosecution. If the due process issue relative to the deprivation of a
fair trial because of lengthy pre-indictment delay were to turn upon the
need of the accused to show governmental malice, the protections of the
Fifth Amendment would be seriously curtailed . . . . The Fifth Amendment
protects an accused from overly stale charges, it does not insulate the
government from the results of its negligence.[^216]

To the Fourth Circuit Court of Appeals, it is simply illogical and
unrealistic to require a defendant, in every case, to prove deliberate
delay for tactical advantage or similar bad intention:

Taking this \[i.e., the prosecution's\] position to its logical
conclusion would mean that no matter how egregious the prejudice to a
defendant, and no matter how long the preindictment delay, if a
defendant cannot prove improper prosecutorial motive, then no due
process violation has occurred. This conclusion, on its face, would
violate fundamental conceptions of justice, as well as the community's
sense of fair play. Moreover, this conclusion does not contemplate the
difficulty defendants either have encountered or will encounter in
attempting to prove improper prosecution motive.[^217]

This last point is especially telling. How does a private citizen prove
a pre-indictment/preferral delay was the product of a deliberate
government effort to harass, gain tactical advantage, or some other
insidious design? If prosecutors are dishonest enough to delay formal
charging with evil intent, it would naive to expect them to "'fess up"
to it in open court. Short of such self-destructive candor, prosecutors
would have to be profoundly clumsy to expose their improper motive to
discovery and proof by defendants. The search for proof of such
prosecutorial perfidy soon takes on the appearance of a quest for the
proverbial Holy Grail, and is just about as likely to succeed. This
reality has been amply illustrated in the courts---there is no published
case where a defendant, who has been required to do so, has successfully
proven an intent to harass, gain tactical advantage, or other improper
motive behind pre-indictment delay.[^218] The extreme difficulties
inherent in any attempt to pry the lid off of prosecutorial thought
processes is magnified in the military, where such an attempt would also
inevitably involve confrontation between a service member and his or her
commanders.

Finally, requiring proof of improper motive in every case plainly is not
fair, and does not address society's need to hold the government
accountable for abusing its citizens, whether deliberately or through
neglect. One Seventh Circuit case, while declining to decide whether to
require improper motive or adopt the flexible balancing test,
nonetheless included this eloquent rationale for why the latter is
preferable:

We are loathe to impose judicial review on prosecutorial decisions such
as the priority of cases for prosecution, yet we note that our balancing
is a place of last resort for defendants whose cases have fallen between
the prosecutorial cracks. An unintentional delay may work to the
disadvantage of the government as well as the defendant, but the
government can choose not to prosecute the case. The due process clause
should provide the defendant with a similar escape, but only where the
balance of prejudice to the defendant against the reason for delay,
although unintentional, is so detrimental to the defendant's case as to
be patently unfair.[^219]

The military justice system has a special interest in deterring
lackadaisical pre-preferral case processing, even where a military
member does not protest or seems to encourage the delay. In the first
Court of Military Appeals decision expressly considering pre-preferral
delay as a possible violation of due process, the court found no
prejudice to the accused and rejected his claim. In doing so, however,
the court was highly critical of the delay, and included this admonition
in its opinion:

Perhaps the Government's lack of concern was generated by appellant's
"sit and wait" strategy in the apparent hope that the Government would
forget the matter. However, the Government's indifference cannot be
excused by the appellant's strategy as such delays reflect adversely
upon the military justice system, and we cannot condone an attitude of
indifference simply because it is consistent with defense strategy . . .
. Having found no prejudice to the appellant we are unwilling to
reverse, but we caution the persons responsible that such delays will
not be tolerated.[^220]

Yet, as long as *Marion* and *Lovasco* are interpreted as requiring an
accused to prove an improper motive, the military courts will have no
choice but to "condone an attitude of indifference" resulting in
protracted pre-preferral delay. Unless the military courts join the
well-reasoned analysis of those federal circuits which have rejected
improper motive as a mandatory element of the test, as a practical
matter the government is free to delay formal charges against a military
member indefinitely. Meanwhile, the individual's career and quality of
life seeps away.

*2. Personal and Profession Harm as "Prejudice"*

> In the military, the *Marion-Lovasco* test would also mean little
> unless harm caused by the "myriad administrative difficulties"[^221]
> is considered, along with any impairment of the accused's ability to
> defend at trial, as proving the prejudice prong of the test. The
> civilian precedents, which have been taken at face value by many
> appellate judges in the military system as requiring rejection of
> personal hardship as "prejudice," are based on an bedrock assumption
> as to the relationship between a civilian citizen and his or her
> government: without an indictment, arrest, or other legal action
> triggering the government's Sixth Amendment speedy trial
> accountability, the government has no power to affect an individual's
> life, liberty, or livelihood. However, this assumption is completely
> inapposite in the military context.

Allowing an accused to prove personal and professional prejudice, and
balancing it against the government's explanation for delay along with
any adverse effects on the accused's ability to defend at trial, is
crucial to imposing meaningful accountability for pre-preferral delay in
the military. Otherwise, the military is free to "slow-roll" a case
until, like Sergeant Croker, an accused's personal and professional life
is in tatters, and without any consequences to its ability to eventually
prosecute.[^222]

*3. The Fifth Amendment Test: Summary*

In addressing pre-preferral delay as a potential violation of the Due
Process Clause of the Fifth Amendment, the military courts should adopt
a two-part test. The accused must first prove he or she has been
substantially prejudiced by pre-preferral delay. The prejudice must be
actual, and not speculative. However, in satisfying his threshold
requirement, an accused may prove the delay has impaired the ability to
mount an effective defense, caused personal or professional harm, or a
combination of both. After proving prejudice, the burden would then
shift to the government to explain the delay in preferring charges. At
that point, the harm to the accused would be balanced against the
reasons for delay. An intent to harass, gain tactical advantage, or some
other improper design would obviously weigh heavier against the
government, even if the delay has been relatively short and the harm to
the accused relatively less serious. However, a long delay from
negligence, inattention, or because the accused's case has been assigned
a low priority, could still violate due process if it resulted in grave
prejudice to the military member. True to the dictates of *Lovasco*,
whether a pre-preferral delay violates those "fundamental conceptions of
justice which lie at the base of our civil and political institutions
and which define the community's sense of fair play and decency" will
depend on the specific facts of each case.

## VII. CONCLUSION

Under the current state of the law, the quotation from Colonel Collins
at the beginning of this article is all too true---"speedy trial" in the
military justice system is a game lawyers play. The so-called "right" to
speedy trial is indeed a myth, as long as the military can, with no
legal accountability, continue to inflict one "administrative" action
after another on military members---persons supposedly cloaked with a
presumption of innocence, just like their civilian counterparts.[^223]
The body of law which delineates a military member's speedy trial
rights---whether under the Sixth Amendment, Article 10 of the U.C.M.J.,
or R.C.M. 707---fails to supply the needed governmental accountability.
No matter how creatively argued, the concept of "speedy trial" cannot be
separated from the existence of formal charges or close forms of
pretrial restraint.

The solution to this institutional flaw in the military justice system
lies in the more flexible concept of "due process," either the Fifth
Amendment variety or the collection of fundamental statutory rights
known as "military due process." To utilize the latter doctrine, the
military courts would have to break new ground to hold that a deliberate
delay in preferring charges would violate military due process, and
thereby require dismissal of charges without any showing of prejudice by
an accused. Nonetheless, the analytical framework for such a result is
present in the military court opinions that have addressed military due
process.

It is a somewhat simpler task for the military courts to fashion a Fifth
Amendment due process test, one that correctly applies the principles
announced by the Supreme Court in *Marion* and *Lovasco* in a *military*
context. It is only a matter of recognizing the profound difference
between the power of civil government over civilians and that of
military commanders over their subordinates, and selecting the elements
of the test accordingly: a flexible, case-specific test where, after an
accused proves legal, personal, or professional prejudice, the burden
shifts to the government to explain the delay, and these reasons are
then balanced against the harm to the accused.

Whichever proposed solution may be adopted, the result will be something
now missing from military law---governmental accountability for
oppressive pre-preferral delay. Military commanders and prosecutors need
not fear this accountability. Under either test, only a very narrow
class of accused service members will be successful in dismissing
charges because of pre-preferral delay.[^224] The proposed tests would
open only a narrow window, but one which has, to date, been effectively
and unfairly shut.

Commanders and military lawyers should not worry about explaining their
actions. They are required to do this every day, in one fashion or
another. However, commanders should think twice about automatically
inflicting every "administrative" action in the book, just because a
military member is suspected of an offense and *may* be convicted at
court-martial, without regard to the duration of these actions, the
effect on the member's life, and whether they are really necessary to
protect the command's security and resources. Adoption of one of the
proposed tests would provide commanders much needed incentive to do so.

Command staff judge advocates should also think twice about
manipulations to avoid triggering a speedy trial "clock," while pressing
on with a *de facto* prosecution. Such gamesmanship makes a fiction out
of rules which have been solemnly promulgated for the protection of
service members and undermines the credibility of the military justice
system. Under either proposed test, the requirements of due process
would deter this kind of sharp practice by military prosecutors, and
impose accountability for extreme abuses of the system.

The law requires military members to be regularly briefed on the
military justice system.[^225] During these briefings, our soldiers,
sailors, airmen, marines, and coast guardsmen are told that the system
strives to balance the needs of military discipline with fairness to the
individual.[^226] In the area of speedy trial, due process, and
pre-preferral delay, the time has come to end the games and give the
troops a reason to believe the company line.

[^1]: ^\*^ *Colonel Becker (J.D., Washburn University; L.L.M., George
    Washington University) is Staff Judge Advocate, Oklahoma City Air
    Logistics Center, Tinker Air Force Base, Oklahoma. The views
    expressed in this article are those of the author and do not reflect
    the official policy or position of the United States Air Force,
    Department of Defense, or the U.S. Government. The author expresses
    his appreciation to Professor Stephen A. Saltzburg, Howrey Professor
    of Trial Advocacy, Litigation and Professional Responsibility,
    George Washington University School of Law, for his advice and
    assistance in the preparation of this article.*

[^2]: Commander, Goodfellow Technical Training Center, Goodfellow Air
    Force Base, Texas, responding to advice from his staff judge
    advocate (the author), April 1988.

[^3]: All names in the case of "Sergeant Jack Croker" are fictitious,
    although the case is real. The author is an Air Force judge
    advocate, and was "Sergeant Croker's" lead defense counsel.

[^4]: Over the next two years, prosecution medical experts steadily
    narrowed their opinion as to the likely time gap between the
    injuries and when Lisa first showed signs of respiratory distress.
    At Sergeant Jack Croker's general court-martial, two prosecution
    medical experts testified, respectively, that the blows were very
    probably struck within a half-hour and one hour of Lisa's arrival at
    the emergency room. The defense's expert vigorously disagreed,
    opining that the only reasonable medical conclusion from the
    evidence was that some of Lisa's injuries could have been inflicted
    anytime up to six hours before her breathing difficulties began, and
    that others could have been sustained up to 48 hours before. This
    latter opinion brought in Lisa's babysitter and the babysitter's
    family members as possible perpetrators.

[^5]: *See* Air Force Instruction \[hereinafter "AFI"\] 36-2110,
    Assignments ¶ 5.2.2, tbl. 27 (20 July 1994). Since the Croker trial,
    the Air Force has completed a total overhaul of its regulatory
    architecture, converting its "Air Force Regulations" \[hereinafter
    "AFR"\] into "Air Force Instructions." At the time of Sergeant
    Croker's case, the authority for involuntarily extending his
    overseas tour was AFR 39-11. For the convenience of readers who may
    want to research current Air Force procedures, only the AFI will be
    cited in subsequent notes.

[^6]: AFI 31-501, Personnel Security Program Management ch. 8 (2 May
    1994).

[^7]: Including Sensitive Compartmented Information, the military's
    highest classification. *See* *id.* at ¶ 3.4 (1994).

[^8]: While Sergeant Croker was arraigned on July 15, 1991, the trial
    did not begin "for real" until January 13, 1992. After arraignment,
    a defense motion to dismiss for speedy trial and due process
    violations was litigated and denied by the military judge. The judge
    then granted the defense an indefinite delay to petition the United
    States Court of Military Appeals (since renamed the United States
    Court of Appeals for the Armed Forces) for a writ of mandamus
    requiring the dismissal of the charge. The petition was eventually
    denied. Although Sergeant Croker continued to suffer personally and
    professionally between July 1991 and January 1992, primary
    responsibility for this portion of the delay belongs to him and his
    attorneys.

[^9]: ^?^ Air Force enlisted members compete for promotion to the grades
    of staff sergeant and above within their respective career fields.
    The competition is governed by "WAPS"--- the Weighted Airman
    Promotion System. Probably the most important elements of WAPS are
    the two promotion examinations, the Promotion Fitness Examination
    ("PFE") and Specialty Knowledge Test ("SKT"). All airmen competing
    for promotion to a particular grade take the PFE, which encompasses
    general matters all Air Force noncommissioned officers are supposed
    to know. No classified information appears on the PFE. The SKT is
    different for each career field, and covers knowledge peculiar to
    that field. *See* AFI 36-2502, Airman Promotion Program (20 July
    1994).

[^10]: The opportunity for an airman to reenlist for another term of
    service is not an automatic right, and may be denied for proper
    cause by an airman's commander. *See* AFI 36-2606, Reenlistment in
    the United States Air Force ch. 1 (1 March 1996).

[^11]: *See* 10 U.S.C. § 308 (1994); and AFI 36-2606 ch. 2, *supra* note
    9.

[^12]: As a general rule, when military status ends, court-martial
    jurisdiction ends with it, even for crimes committed during military
    service. *See* 10 U.S.C. §§ 802, 803 (1994); Solorio v. United
    States, 483 U.S. 435, 107 S.Ct. 2924, 97 L.Ed.2d 365 (1987); United
    States *ex. rel.* Toth v. Quarles, 350 U.S. 1, 76 S.Ct. 1, 100 L.Ed.
    8 (1955); United States *ex. rel.* Hirshberg v. Cooke, 336 U.S. 210,
    69 S.Ct. 530, 93 L.Ed. 621 (1949). Therefore, if Sergeant Croker's
    commanders wanted to deny him reenlistment, they had to extend his
    current enlistment in order to retain court-martial jurisdiction.

[^13]: The "staff judge advocate," or "SJA," is the chief legal counsel
    for a military command. He or she heads up an office which is
    responsible for a multitude of criminal and civil law issues on
    behalf of the command, as well as providing legal assistance on some
    civil law matters to military members and their families. In the
    criminal law context, the SJA is analogous to a district attorney,
    although with no inherent authority to dispose of charges or convene
    courts-martial. In the military justice system, that power is
    retained by commanders. In practice, however, the SJA is probably
    the single most influential player in the process. *See* 10 U.S.C.
    §§ 822-824, 830-834 (1994); and [Manual for
    Courts-Martial]{.smallcaps}, United States (1995 ed.) \[hereinafter
    "Manual"\], Rules for Courts-Martial \[hereinafter "R.C.M."\]
    401-407, 504, 601-604. *See also infra* note 80.

[^14]: *See* R.C.M. 202(c), *supra* note 12; and AFI 36-3208,
    Administrative Separation of Airmen ¶ 2.4 (14 October 1994).

[^15]: To be legally enforceable, an order must be "lawful." Manual,
    *supra* note 12, Part IV ¶ 14b(2). That is, "\[t\]he order must
    relate to military duty, which includes all activities reasonably
    necessary to accomplish a military mission, or safeguard or promote
    the morale, discipline, and usefulness of members of a command and
    directly connected with the maintenance of good order in the
    service. The order may not, without such a valid military purpose,
    interfere with private rights or personal affairs." *Id.* ¶
    14c(2)(a)(iii). There is no published precedent in military law
    addressing an order such as that issued to the Crokers. Its
    lawfulness is certainly doubtful, and was indeed questioned by the
    Crokers. However, military subordinates who disobey orders they
    believe may be unlawful do so at their peril. It is no defense to a
    charge of disobedience that a military member believed an order to
    have been illegal, if that order is eventually ruled to have been
    lawful. See *Id.* ¶ 14c(2)(a)(i), R.C.M. 916(l)(1). In any case, the
    Crokers obeyed the order and the issue never came to a head.

[^16]: This type of order has been held to be lawful under certain
    circumstances. *See* United States v. McCarthy, 38 M.J. 398 (C.M.A.
    1993) (dictum); United States v. Button, 31 M.J. 897 (A.F.C.M.R.
    1990), *aff'd on other grounds*, 34 M.J. 139 (C.M.A. 1992). For
    obvious reasons, commanders are reluctant to involve themselves this
    deeply in the personal and family lives of their subordinates.
    Within United States territory, a state's child welfare agencies and
    courts generally assume jurisdiction in cases of suspected child
    abuse, and any protective orders usually issue under civil
    authority. In foreign countries, however, the responsibility for
    protecting American military family members pending the outcome of
    investigations falls on commanders almost exclusively.

[^17]: The death of a child permits, at the request of the member,
    reassignment to a base nearby other family, if consistent with the
    needs of the service. *See* AFI 36-2110, *supra* note 4, fig. A7.1 .

[^18]: "Preferral" of charges is the first formal step in the military
    justice system. It is analogous to the criminal complaint in many
    civilian jurisdictions. *See* 10 U.S.C. § 830 (1994); R.C.M. 307,
    *supra* note 12.

[^19]: The AFOSI (the Air Force's criminal investigative agency) had
    first opened its investigation on July 5, 1989, and closed it in
    late October 1989. However, AFOSI reopened the investigation in
    February 1990, closed it again in March, reopened it again in April,
    and closed it for the last time on August 24, 1990.

[^20]: Article 32, Uniform Code of Military Justice (hereinafter
    "U.C.M.J." or "Code"), 10 U.S.C. § 832 (1994). The Article 32
    investigation is a formal hearing into charges conducted by an
    investigating officer, who examines evidence and makes
    recommendations whether the charges should be referred to trial by
    court-martial. *See also* R.C.M. 405, *supra* note 12. The Article
    32 investigation is analogous to the Grand Jury. However, the
    investigating officer's recommendations are not binding. The actual
    decision whether the accused will face trial by court-martial---the
    "referral"--- is made by the "convening authority," a commander or
    other official empowered by law to convene courts-martial. *See* 10
    U.S.C. §§ 822-824, 834 (1994); R.C.M. 504, 601, *supra* note 12.

[^21]: 10 U.S.C. § 827 (1994); R.C.M. 501(b), 405(d)(3)(A), *supra* note
    12.

[^22]: The preferral of this charge, and its immediate transmittal to
    the summary court-martial convening authority, tolled the statute of
    limitations well within the five-year limitation period. *See* 10
    U.S.C. §843(b)(1) (1994).

[^23]: The United States Court of Military Appeals has been the highest
    appellate court within the military justice system. It has since
    been renamed the United States Court of Appeals for the Armed
    Forces, but without any change in its jurisdiction. *See* National
    Defense Authorization Act for Fiscal Year 1995, Pub. L. No. 103-337,
    § 924(a), 108 Stat. 2663 (1994). The court is composed of five
    civilian judges (three at the time of Sergeant Croker's petition).
    As an "Article I" court, its members are not appointed for life as
    are members of the "Article III" judiciary. Rather, its judges are
    appointed for fifteen-year terms. Decisions of the Court of Appeals
    for the Armed Forces may be appealed to the United States Supreme
    Court by petition for writ of certiorari. *See* 10 U.S.C. §§
    867-867a, 941-946 (1994); R.C.M. 1204-1205, *supra* note 12.

    The military justice system also maintains intermediate appellate
    courts for each of the services. Until 1994, these were called,
    respectively, the Air Force, Army, Navy-Marine Corps, and Coast
    Guard Courts of Military Review. However, they have been renamed the
    Air Force, Army, etc. Courts of Criminal Appeals, also without a
    change in their jurisdiction. *See* National Defense Authorization
    Act for Fiscal Year 1995, Pub. L. No. 103-337, § 924(b), 108 Stat.
    2663 (1994). Although judges of the service Courts of Criminal
    Appeals may be either civilians or military lawyers, they are
    presently all uniformed judge advocates, with the exception of the
    civilian Chief Judge of the Coast Guard court. They are appointed by
    the Judge Advocates General of their respective services (or, in the
    case of the Coast Guard court, the General Counsel of the Department
    of Transportation). *See* 10 U.S.C. § 866 (1994).

[^24]: *See* 28 U.S.C. § 1651 (1994), commonly known as the "All Writs
    Act." In extraordinary cases where the normal review process does
    not afford an adequate remedy, the military appellate courts will
    intervene under authority of the All Writs Act. *See, e.g.*, ABC,
    Inc. v. Powell, 47 M.J. 363 (1997); Cooke v. Orser, 12 M.J. 335
    (C.M.A. 1982); Andrews v. Heupel, 29 M.J. 743 (A.F.C.M.R. 1990).

[^25]: Sergeant Croker's eventual acquittal, of course, made this remedy
    superfluous.

[^26]: The correct term is actually "members." 10 U.S.C. § 825 (1994);
    R.C.M. 501(a), 502(a), 503(a), *supra* note 12.

[^27]: Article 138 (10 U.S.C. § 938 (1994)) provides military members a
    formal procedure for complaining of wrongs allegedly committed by
    their commanders.

[^28]: The reason officially cited by Sergeant Croker's commander for
    denying his reenlistment was an act of adultery committed by
    Sergeant Croker in December 1991. Adultery is a violation of Article
    134, U.C.M.J. *See* 10 U.S.C. 934 (1994); Manual, *supra* note 12,
    Part IV ¶ 62. That charge had originally been preferred and referred
    for trial by the same general court-martial as the manslaughter
    charge. However, upon motion by the defense, the military judge
    ruled that the Article 32 investigation into the adultery charge had
    been defective, and had to be reaccomplished. This resulted in the
    convening authority ordering the adultery charge severed from the
    manslaughter charge, so the latter could be tried as scheduled.
    After the manslaughter acquittal, Sergeant Croker accepted
    nonjudicial punishment from his commander under Article 15, U.C.M.J.
    (10 U.S.C. § 815 (1994)) for the adultery, and the convening
    authority dismissed the adultery charge.

[^29]: The military uses the word "apprehension" to describe the act
    known as "arrest" in civilian jurisdictions. *See* 10 U.S.C. § 807
    (1994); R.C.M. 302, *supra* note 12. In military law, "arrest" is a
    form of pretrial restraint akin to confinement, but is "moral
    restraint" imposed by an order to remain within specified limits
    rather physical restraint. *See* 10 U.S.C. § 809(a) (1994); R.C.M.
    304(a)(3), *supra* note 12.

[^30]: [U.S. Const. amend. VI]{.smallcaps}.

[^31]: 10 U.S.C. § 810 (1994).

[^32]: The concept of "military due process" is discussed at section
    V.A. *infra*.

[^33]: [U.S. Const. amend. V]{.smallcaps}.

[^34]: Article 33, U.C.M.J. (10 U.S.C. § 833 (1994)) is also a source of
    "speedy trial" law in the military justice system. United States v.
    Vogan, 35 M.J. 32, 33 (C.M.A. 1992). Article 33 requires a commander
    to forward charges to the general court-martial convening authority
    within eight days of an accused's arrest or confinement, if
    practicable. Historically, the purpose of this requirement has been
    to ensure early assignment of defense counsel to military members
    undergoing severe pretrial restraint. United States v. Jackson, 5 MJ
    223, 226 (C.M.A. 1978). If Article 33 is violated, the accused must
    show specific prejudice to obtain relief, which is rare. *See,
    e.g.*, United States v. Rogers, 7 M.J. 274, 275 (C.M.A. 1979);
    United States v. Nelson, 5 M.J. 223, 226 (C.M.A. 1978).

    The Speedy Trial Act of 1974 (18 U.S.C. §§ 3161-3174 (1994)) and
    Fed. R. Crim. P. 48(b) do not apply to courts-martial. United States
    v. Bench, 23 U.S.C.M.A. 480, 482, 50 C.M.R. 560, 1 M.J. 118 (C.M.A.
    1975)(Cook, J., dissenting); United States v. Vogan, 32 M.J. 959,
    961 (A.C.M.R. 1991), *aff'd*, 35 M.J. 32 (C.M.A. 1992).

[^35]: United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d
    468 (1971).

[^36]: Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101
    (1972).

[^37]: *Marion*, 404 U.S. at 320.

[^38]: The state's prosecutors perceived their case against the co-actor
    was better than against the petitioner, and that they needed the
    co-actor's testimony to convict the petitioner. There were a total
    of six trials of the co-actor, including retrials after mistrials
    and appellate reversals, before he was finally convicted.

[^39]: The petitioner argued for a set period of time, after which the
    right to speedy trial is violated unless the defendant has been
    brought to trial. The state's attorneys urged a "demand rule,"
    whereby the Speedy Trial Clause would only have relevance if an
    accused expressly demanded a speedy trial. The Court rejected the
    former rule as too inflexible, noting that delay often works in a
    criminal defendant's favor. The justices rejected the "demand rule"
    as inconsistent with the Court's holdings that constitutional
    protections may ordinarily only be lost when they are expressly
    waived.

[^40]: Dillingham v. United States, 423 U.S. 64 , 96 S.Ct. 303, 46
    L.Ed.2d 205 (1975).

[^41]: United States v. MacDonald, 456 U.S. 1, 102 S.Ct. 1497, 71
    L.Ed.2d 696 (1982), the famous "Fatal Vision" murder case. *See*
    [Joe McGinness, Fatal Vision (1983).]{.smallcaps}

[^42]: The Court was divided six to three. Justice Stevens filed a
    separate concurring opinion. Justice Marshall dissented in an
    opinion joined by Justices Brennan and Blackmun.

[^43]: *MacDonald*, 456 U.S. at 9.

[^44]: *Id.* at 10.

[^45]: United States v. Loud Hawk, 474 U.S. 302, 106 S.Ct. 648, 88
    L.Ed.2d 640 (1986). Justice Powell wrote for a 5 to 4 majority.
    Justice Marshall wrote the dissent, in which Justices Brennan,
    Blackmun, and Stevens concurred.

[^46]: *Loud Hawk,* 474 U.S. at 312.

[^47]: Doggett v. United States, 505 U.S. 647, 112 S.Ct. 2686, 120
    L.Ed.2d 520 (1992).

[^48]: *Compare* Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d
    183 (1973), where the Court, in a per curiam opinion, sharply
    reversed an Arizona Supreme Court decision which had held that
    prejudice to a defendant's ability to defend at trial is the only
    type of prejudice to be considered in applying the Barker v. Wingo
    balancing test.

[^49]: United States v. Williams, 12 U.S.C.M.A. 81, 82, 30 C.M.R. 81
    (1961). Once charges are preferred, "the person accused shall be
    informed of the charges against him as soon as practicable." 10
    U.S.C. § 830(b); *see also* R.C.M. 308, *supra* note 12.

[^50]: United States v. Hounshell, 7 U.S.C.M.A. 3, 21 C.M.R. 129, 132
    (1956).

[^51]: United States v. Kossman, 38 M.J. 258 (C.M.A. 1993); United
    States v. Burton, 21 U.S.C.M.A. 112, 44 C.M.R. 166, 171 (1971).

[^52]: Recall that "arrest," in military law, is a form of close
    pretrial restraint imposed by order rather than physical
    constraints. The physical detention of suspects by law enforcement
    officers, typically called "arrest" in civilian jurisdictions, is
    known in the military as "apprehension."

[^53]: Military members charged with U.C.M.J. offenses are not routinely
    confined or placed under arrest prior to trial. There is no bail in
    the military justice system. Accordingly, the prerequisites for
    lawful pretrial confinement are stricter than mere probable cause.
    *See* R.C.M. 305, *supra* note 12; United States v. Heard, 3 M.J. 14
    (C.M.A. 1977); United States v. Otero, 5 M.J. 781 (A.C.M.R.), *pet.
    denied*, 6 M.J. 121 (C.M.A. 1978); Courtney v. Williams, 1 M.J. 267
    (C.M.A. 1976); United States v. Lynch, 13 M.J. 394 (C.M.A. 1982).

[^54]: United States v. Callahan, 10 U.S.C.M.A. 156, 27 C.M.R. 230, 232
    (1959); United States v. Davis, 11 U.S.C.M.A. 410, 29 C.M.R. 226,
    230 (1960).

[^55]: United States v. Tibbs, 15 U.S.C.M.A. 350, 35 C.M.R. 322, 325
    (1965).

[^56]: United States v. Burton, 21 U.S.C.M.A. 112, 44 C.M.R. 166 (1971).

[^57]: 44 C.M.R. at 171.

[^58]: *Compare* United States v. Rowsey, 14 M.J. 151 (C.M.A. 1982),
    holding that an accused's right to speedy trial under Article 10
    could be violated without invoking the *Burton* presumption. In
    *Rowsey*, the accused had been confined for "only" 85 days, but had
    made two demands for speedy trial which had been ignored by the
    prosecution. *Rowsey*, however, was an exception within a phalanx of
    cases for which application (or non-application) of the *Burton*
    presumption was the prize.

[^59]: United States v. Driver, 23 U.S.C.M.A. 243, 49 C.M.R. 376 (1974).

[^60]: *See, e.g.*, United States v. Powell, 2 M.J. 6 (C.M.A. 1976)
    (restriction to post was not tantamount to confinement); United
    States v. Schilf, 1 MJ 251, 252 n. 2 (C.M.A. 1976) (restriction to
    squadron area with periodic sign-in requirement was tantamount to
    confinement); United States v. Burrell, 13 M.J. 437 (C.M.A. 1982)
    (hospitalization and escort requirements not sufficiently onerous to
    be equivalent to confinement); United States v. Cherok, 19 M.J. 559
    (N.M.C.M.R. 1984), *aff'd other grounds*, 22 M.J. 438 (C.M.A. 1986)
    ("arrest" is tantamount to confinement); United States v. Buchecker,
    13 M.J. 709 (N.M.C.M.R. 1982) (assignment to "training brigade" was
    not tantamount to confinement); United States v. Sims, 13 M.J. 813
    (A.F.C.M.R. 1982) (restriction to base, coupled with orders not to
    go to Noncommissioned Officers Club and to report in periodically,
    was sufficiently onerous to be equivalent to confinement).

[^61]: *Burton*, 44 C.M.R. at 172.

[^62]: *See, e.g.*, United States v. Leonard, 3 M.J. 214 (C.M.A. 1977),
    holding defense accountable for delay caused by psychiatric
    evaluation of accused. *Accord*, United States v. Colon-Angueira, 16
    M.J. 20 (C.M.A. 1983). *See also*, United States v. Henderson, 1
    M.J. 421 (C.M.A. 1976) (normal delays for leave, crowded dockets,
    and personnel shortages are accountable to prosecution); United
    States v. Herron, 4 M.J. 30 (C.M.A. 1977) (accused is responsible
    for delay due to his withdrawal of previous waiver of Article 32
    investigation).

[^63]: *See* United States v. Ward, 1 M.J. 21 (C.M.A. 1975), holding
    that independent sets of charges, preferred at different times,
    demanded separate accounting for purposes of the *Burton*
    presumption. Consequently, a confined accused's Article 10 right to
    speedy trial could be violated for one set of charges, but not for
    another.

[^64]: United States v. Kossman, 38 M.J. 258 (C.M.A. 1993).

[^65]: *See* 10 U.S.C. § 862 (1994); R.C.M. 908, *supra* note 12.

[^66]: With few exceptions, review of decisions of the service Courts of
    Criminal Appeals by the United States Court of Appeals for the Armed
    Forces is discretionary with that court. However, the Judge
    Advocates General of the services have the power to require review
    by the Court of Appeals for the Armed Forces of any Court of
    Criminal Appeals decision. 10 U.S.C. § 867(a) (1994).

[^67]: *Kossman*, 38 M.J. at 259.

[^68]: *Id.* at 261.

[^69]: *Id*. at 259.

[^70]: The President has the power to establish rules of procedure for
    courts-martial. 10 U.S.C. § 836(a) (1994). Of course, these rules
    may not conflict with acts of Congress, judicial interpretations of
    statutes, or the Constitution.

[^71]: *Kossman*, 38 M.J. at 261 n.3.

[^72]: The *Kossman* court's two dissenters, however, saw the majority
    ruling as a regression from a clear, well-recognized standard to
    chaos, and for no good reason. In the view of Chief Judge Sullivan,
    the return of Article 10 analysis to the "reasonable diligence"
    standard will produce "essentially unreviewable *ad hoc* decisions
    by military trial judges" and "condemn\[s\] the military legal
    community to reinvent our speedy-trial clock, second by second." 38
    M.J. at 262 (Sullivan, C.J., dissenting). This dark prophesy seems
    born out by early decisions in the post-*Kossman* era. In United
    States v. Laminman, 41 M.J. 518 (C.G. Ct. Crim. App. 1994), a
    sharply divided Coast Guard Court of Criminal Appeals upheld the
    trial judge's dismissal of charges on Article 10 grounds, because
    the government had failed to carry its burden of proof that it had
    been reasonably diligent in bringing the accused to trial. *See*
    R.C.M. 905(c)(2)(B), *supra* note 12, assigning the burden of proof
    on speedy trial issues to the prosecution. In United States v.
    Hatfield, 44 M.J. 22 (1996), the Court of Appeals for the Armed
    Forces upheld the military judge's dismissal of charges after a 106
    day delay. In doing so, the court reaffirmed the *Kossman* emphasis
    on the "degree of discretion" in a military judge. *Id.* at 24
    (citing *Kossman*, 38 M.J. at 262). *See also* United States v.
    Calloway, 47 M.J. 782 (N.M. Ct. Crim. App. 1998) (no reasonable
    diligence where, among other delays, accused spent first 20 days in
    pretrial confinement without any action on his case and 66 days
    without assignment of defense counsel).

[^73]: 10 U.S.C. § 836 (1994).

[^74]: A few of the punitive articles of the Code expressly set out
    mandatory or maximum punishments. *See, e.g.*, 10 U.S.C. § 906
    (1994) (Article 106---spying in war time), which has a mandatory
    death penalty; 10 U.S.C. § 118(1) and (4) (1994) (Article 118(1) and
    (4)---premeditated and "felony" murder), which have mandatory
    alternative punishments of either death or life imprisonment, as a
    court-martial may direct; and 10 U.S.C. § 920(a) (1994) (Article
    120(a)---rape), which sets out a punishment of "death or such other
    punishment as a court-martial may direct." The vast majority of
    U.C.M.J. violations, however, are simply to be punished "as a
    court-martial may direct." 10 U.S.C. § 856 (1994) (Article 56) gives
    the President the authority to set maximums for punishment "which a
    court-martial may direct." These limits are found in Manual, *supra*
    note 12, Part IV.

[^75]: Exec. Order No. 10214, 16 Fed. Reg. 1303 (1951).

[^76]: Pub. L. 81-506, 64 Stat. 108 (1950).

[^77]: Exec. Order No. 11430, 3 C.F.R. 137 (1968).

[^78]: Pub. L. 90-632, 82 Stat. 1335 (1968).

[^79]: Exec. Order No. 12473, 49 Fed. Reg. 17152 (1984).

[^80]: Pub. L. 98-209, 97 Stat. 1402 (1983).

[^81]: The 1984 Manual has been amended eight times. The last amendment
    was on May 12, 1995, and reissued the Manual as the "1995 Edition."
    Exec. Order No. 12960 (1995). Unless otherwise identified, all
    references to "Manual" are to the 1995 edition. For copies of all
    executive orders creating and then amending the 1984 Manual, *see*
    Manual, *supra* note 12, App. 25.

[^82]: 18 U.S.C. §§ 1361-3174 (1994).

[^83]: Manual, *supra* note 12, App. 21 A21-40, A21-38.

[^84]: *See, e.g.*, United States v. Reap, 41 M.J. 340 (1995) (holding
    that in a case tried in June 1987 and February 1989, and interrupted
    by an Article 62 interlocutory appeal, the 63 days between military
    judge's suppression of evidence and notice of the Article 62 appeal
    was excluded); United States v. Montanino, 40 M.J. 364 (C.M.A. 1994)
    (stating that where defense requested trial delay to allow for
    presence of military defense counsel of choice, delay was excluded
    from government's speedy trial accountability even though delay
    request had been prompted by counsel's deployment); United States v.
    McKnight, 30 M.J. 205 (C.M.A.), *cert. denied*, 498 U.S. 942 (1990)
    (explaining where defense requested Article 32 hearing date between
    August 5th and 15th, and Investigating Officer not available until
    August 11th, defense is accountable for time up to August 11th);
    United States v. Ramsey, 28 M.J. 370 (C.M.A. 1989) (holding that
    absent bad faith, time taken by government to consider interlocutory
    appeal is excluded); United States v. Carlisle, 25 M.J. 426 (C.M.A.
    1988) (stating government accountable for delay in Article 32
    hearing, even though date selected to accommodate defense); United
    States v. Cook, 27 M.J. 212 (C.M.A. 1988) (holding delay in new
    Article 32 hearing due to defense request for witnesses was
    accountable to government); United States v. Raichle, 28 M.J. 876
    (A.F.C.M.R. 1989) (explaining that absent express defense request
    for delay, government is responsible for delay to obtain
    defense-requested depositions); United States v. Miniclier, 23 M.J.
    843 (A.F.C.M.R. 1987) (stating ime involved in considering officer's
    request to resign in lieu of court-martial not excluded from
    government accountability).

[^85]: Although this is not always the case. *See* Andrews v. Heupel, 29
    M.J. 743 (A.F.C.M.R. 1990) where the accused was apprehended for
    drug smuggling by Air Force investigators while he was on leave
    status in the Philippines, and then sent back to his home base in
    Hawaii while his prosecution in the Philippines was being prepared.
    Upon arrival in Hawaii, his commander restricted him to the base,
    thus starting the R.C.M. 707 120-day clock. However, no one informed
    military authorities in the Philippines. By the time the accused was
    brought to trial, his speedy trial rights under R.C.M. 707 had been
    violated several times over.

[^86]: *See, e.g.*, United States v. Webb, Misc. Docket No. 85-0016,
    slip op. (N.M.C.M.R. Oct. 11, 1985).

[^87]: *See, e.g.,* United States v. Facey, 26 M.J. 421 (C.M.A. 1988)
    (holding orders not to go beyond the "local area" surrounding the
    air base were not "conditions on liberty"); United States v. Fowler,
    24 M.J. 530 (A.F.C.M.R. 1987) (stating requirement for telephone
    notification before leaving base was not "condition on liberty");
    United States v. Johnson, 24 M.J. 796 (A.C.M.R. 1987), *pet.
    denied*, 26 M.J. 40 (C.M.A. 1988) (explaining cancellation of leave,
    direction not to leave area of Frankfurt, Germany, without
    permission, and order not to go near duty section were not
    "conditions on liberty").

[^88]: Exec. Order No. 12550, 51 Fed. Reg. 6497 (1986).

[^89]: 10 U.S.C. § 830(a) (1994) states: "Charges and specification
    shall be signed by a *person subject to this chapter* under oath
    before a commissioned officer of the armed forces authorized to
    administer oaths . . . ." (emphasis added). *See also*, R.C.M.
    307(a), *supra* note 12.

[^90]: 10 U.S.C. § 830(b) (1994). *See* United States v. Gray, 26 M.J.
    16, 22-23 (C.M.A. 1988) (Cox, J., concurring).

[^91]: In the author's experience, charges preferred by military members
    in their individual capacity often stem from personal animosity
    toward a fellow member (e.g., adultery charges), or are reactions to
    perceived unfair treatment by superiors. This is not always the
    case, as the author is aware of cases where, after an accused's
    commander had refused to prefer charges, individual members have
    preferred charges at the recommendation of the installation staff
    judge advocate.

[^92]: *Gray*, 26 M.J. at 19 n.2.

[^93]: *See* United States v. Maresca, 28 M.J. 328 (C.M.A. 1989)
    (holding "constructive notice" to an accused, hence starting R.C.M.
    707 clock, where government had opportunity to provide formal notice
    but did not do so); Thomas v. Edington, 26 M.J. 95 (C.M.A. 1988)
    (explaining actual notice had been given earlier than formal notice
    shown on charge sheet, and government accountability began with
    actual notice); United States v. Angel, 28 M.J. 600 (N.M.C.M.R.
    1989) (stating under circumstances, notice to accused's defense
    counsel held to be notice to him, starting the 120-day clock);
    United States v. Berrey, 28 M.J. 714 (N.M.C.M.R. 1989) (holding
    intentional delay in Article 30(a) notice was a violation of
    military due process, requiring dismissal of charges); United States
    v. Leamer, 29 M.J. 616 (C.G.C.M.R. 1989) (stating delay between
    preferral and notice was not intentional manipulation, earlier oral
    notification that accused was under investigation was not the
    equivalent of Article 30(a) notice, and inadvertent observation of
    charge sheet by accused is not notice under Article 30(a)).

[^94]: Exec. Order No. 12767, 56 Fed. Reg. 302 (1991).

[^95]: Manual, *supra* note 12, App. 21 A21-40.

[^96]: *Carlisle*, 25 M.J. at 428; *Maresca*, 28 M.J. at 333; United
    States v. Longhofer, 29 M.J. 22 (C.M.A. 1989).

[^97]: ^96^ *See* United States v. Dies, 45 M.J. 376 (1996); United
    States v. Anderson, 46 M.J. 540, 544 (N.M. Ct. Crim. App. 1997);
    United States v. Nichols, 42 M.J. 715 (A.F.Ct.Crim.App. 1995). *Cf.*
    United States v. Thompson, 46 M.J. 472 (1995) (holding post-Change 5
    R.C.M. 707 did not *per se* require advance approval of delay,
    although *post hoc* approval is risky; under the circumstances,
    convening authority's "ratification" of Article 32 Investigating
    Officer's approval of defense-requested delay is properly deducted
    from government's speedy trial accountability).

[^98]: R.C.M. 707(d) contains a list of factors for the judge to
    consider in deciding whether dismissal should be with prejudice. If,
    however, a violation raises to a constitutional level, the rule
    requires dismissal with prejudice. United States v. Strunk, 412 U.S.
    434, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973). In this regard, R.C.M. 707
    now parallels the Federal Speedy Trial Act. *See* 18 U.S.C. § 3162
    (1994). For an example of the application of R.C.M. 707(d), s*ee*
    United States v. Edmond, 41 M.J. 419 (1995), *vacated on other
    grounds*, 516 U.S. 802 (1995).

[^99]: At one time, one judge of the United States Court of Appeals for
    the Armed Forces opined that no form of pretrial restraint, even
    confinement, could *by itself* start the R.C.M. 707 clock; rather,
    such restraint must co-exist with formally preferred charges to
    trigger government accountability. *Gray*, 26 M.J. 16 (Sullivan,
    J.). However, the remaining judges did not join him in this novel
    reading of R.C.M. 707(a), which plainly states that *either*
    preferral (at the time of *Gray*, notice of preferral) *or*
    imposition of restraint starts the clock running, whichever event is
    earlier. As an additional point of information, it should be noted
    that the 120-day clock is also triggered for reservists, who are
    called to active duty for purposes of court-martial under R.C.M.
    204, on the date of entry on such active duty. R.C.M. 707(a)(3),
    *supra* note 12.

[^100]: Constructive distribution of drugs: *see*, *e.g.,* United States
    v. Sorrell, 23 M.J. 122 (C.M.A. 1986); and United States v. Johnson,
    26 M.J. 686 (A.C.M.R. 1988), *aff'd*, 28 M.J. 452 (C.M.A. 1989).
    Constructive possession of drugs: *see*, *e.g.,* United States v.
    Seger, 25 M.J. 420 (C.M.A. 1988); United States v. Traveler, 20 M.J.
    35 (C.M.A. 1985); United States v. Wilson, 7 M.J. 290 (C.M.A. 1979);
    United States v. Englert, 42 M.J. 827 (N.M.Crim.App. 1995); and
    United States v. Copening, 38 M.J. 605 (Army Crim.App. 1993).

[^101]: Constructive enlistment before adoption of Article 2(c),
    U.C.M.J. (10 U.S.C. § 802(c) (1994)): *see*, United States v.
    Graham, 22 U.S.C.M.A. 75, 46 C.M.R. 75 (1972); and United States v.
    Overton, 9 U.S.C.M.A. 684, 26 C.M.R. 464 (1958). Constructive
    enlistment after Article 2(c): *see*, United States v. Hirsch, 26
    M.J. 800 (A.C.M.R. 1988); and United States v. Quintal, 10 M.J. 532
    (A.C.M.R. 1980), *aff'd*, 15 M.J. 278 (C.M.A. 1983). Constructive
    service of Courts of Military Review decisions: *see*, United States
    v. Myers, 28 M.J. 191 (C.M.A. 1989); United States v. Jackson, 38
    M.J. 744 (Army Crim.App. 1993).

[^102]: United States v. Maresca, 28 M.J. 328 (C.M.A. 1989).

[^103]: *Id.* at 332 (quoting Black's Law Dictionary 485 (5th ed.
    1979)). *See also*, United States v. Berrey, 28 M.J. 714, 720
    (N.M.C.M.R. 1989) (Rubens, J., concurring).

[^104]: As noted above, charges were formally preferred against Sergeant
    Croker the day before his Article 32 hearing. This hearing date had
    been "set" and delayed several times over the previous months while
    the government tried to arrange times when all counsel and witnesses
    could be present at the same time. As has also been previously
    described, throughout this period counsel for both sides exchanged
    correspondence regarding discovery, witnesses, and other procedural
    matters as if a formal prosecution were underway, using titles
    existing under military law only when charges have been preferred.

    Another factor contributing to the "gamesmanship" surrounding the
    preferral of charges in the Air Force has nothing to do with the law
    of speedy trial, but rather management goals and competition among
    commands. Previously, the Air Force's *Military Justice Guide* (AFR
    111-1) set out time processing "goals" for various types of
    courts-martial cases. AFR 111-1 has now been superseded by AFI
    51-201, Administration of Military Justice (3 October 1997), which
    does not contain such goals. However, the Air Force has adopted a
    series of "metrics" or "quality performance indicators," which are
    variations on these goals. Installations are expected to meet or
    exceed the processing time goals, and some commands rank bases
    according to how fast they are able to process their cases. In the
    author's experience, this practice engenders considerable---and
    sometimes unhealthy---competition. Too often, this competition
    translates into artificial manipulation of the time of preferral of
    charges, which is the triggering event for processing time
    accountability. This can work to an accused's benefit, when his or
    her defense counsel knows how to "work the system." The government
    is sometimes willing to enter into a favorable pretrial agreement
    (the military term for "plea bargain") if an accused is willing to
    waive the mandatory period between service of charges after referral
    and date of trial (five days for general courts-martial, three days
    for special courts-martial; *see* 10 U.S.C. § 835 (1994) and R.C.M.
    602, *supra* note 12). *See also, generally*, R.C.M. 705, *supra*
    note 12. The Air Force also measures the time between a "case ready
    date" and preferral, presumably as a means of detecting such
    manipulation of the preferral date. However, in the author's
    experience, this statistic is not emphasized as a performance
    indicator. Moreover, "case ready date" is itself subject to
    manipulation.

[^105]: *See, e.g.*, United States v. Miller, 33 M.J. 235 (C.M.A. 1991),
    holding that a commander may be lawfully ordered to prefer charges,
    as long as the commander may honestly swear that he or she has
    personal knowledge of or has investigated the charges and believes
    them to be true. *See also* United States v. Johnston, 39 M.J. 242
    (C.M.A. 1994), where the base staff judge advocate asked a member of
    her staff to prefer the charges. In Sergeant Croker's case, everyone
    in his local chain of command refused to prefer charges, stating
    they were unable to take the required oath because they did not
    believe him guilty of harming his daughter. The installation staff
    judge advocate persuaded a commander outside Sergeant Croker's chain
    of command to prefer the manslaughter charge.

[^106]: United States v. Koepke, 15 U.S.C.M.A. 542, 36 C.M.R. 40 (1965);
    United States v. May, 2 C.M.R. 80 (C.M.A. 1952); United States v.
    Frage, 26 M.J. 924 (N.M.Crim.App. 1988). In fact, one judge of the
    United States Court of Appeals for the Armed Forces has opined that
    charges sworn before an officer not legally empowered to administer
    oaths (*see* 10 U.S.C. § 936 (1994)) is not prejudicial error, in
    the absence of objection from the accused. Frage v. Moriarty, 27
    M.J. 341, 344 (C.M.A. 1988) ( Sullivan, J., dissenting).

[^107]: United States v. Taylor, 15 U.S.C.M.A. 565, 36 C.M.R. 63 (1965);
    United States v. Westergren, 14 C.M.R. 560 (A.F.B.R. 1953).

[^108]: *May*, 2 C.M.R. at 81.

[^109]: United States v. Gray, 26 M.J. 16, 22-23 (C.M.A. 1988).

[^110]: *Id.* at 19.

[^111]: In Sergeant Croker's case, the staff judge advocate for the
    general court-martial convening authority exercising jurisdiction
    over Croker's base informed his defense counsel on August 27, 1990
    that a decision had been made to prefer charges against Sergeant
    Croker. Therefore, application of "constructive preferral" to the
    Croker case would not have been difficult. In the normal case,
    however, staff judge advocates do not keep defense counsel so well
    informed as to their thought processes.

[^112]: R.C.M. 304(a)(2), *supra* note 12.

[^113]: United States v. Borges, 41 M.J. 739 (N.M. Crim. App. 1994) ;
    United States v. High, 39 M.J. 82 (A.F. Crim. App. 1994); United
    States v. Russell, 30 M.J. 977, 979 (A.C.M.R. 1990); United States
    v. Gregory, 21 M.J. 952, 955 (A.C.M.R.), *aff'd*, 23 M.J. 246
    (C.M.A. 1986). *See also* 10 U.S.C. § 934 (1994); Manual, *supra*
    note 12, Part IV ¶ 102.

[^114]: United States v. Acireno, 15 M.J. 570, 572 (A.C.M.R. 1982).

[^115]: United States v. Wilkinson, 27 M.J. 645, 649 (A.C.M.R. 1988),
    *pet. denied*, 28 M.J. 230 (C.M.A. 1989).

[^116]: In Sergeant Croker's case, the defense contended the
    government's accountability should have started either on November
    29, 1989 (the day Sergeant Croker's family left the island while he
    was required to stay behind) or February 15, 1990 (the day
    "administrative hold" action had been formally initiated). Using
    either date, the government's R.C.M. 707 accountability would have
    far exceeded the 120 day maximum (586 days and 460 days,
    respectively).

[^117]: United States v. Reynolds, 36 M.J. 1128, 1130 (A.C.M.R. 1993)
    (stating limits on pass privileges and privilege to wear civilian
    clothes were not tantamount to "restriction"); United States v.
    Facey, 26 M.J. 421 (C.M.A. 1988) (holding in a pre-Change 5 case,
    that order not to go outside of "local area" without permission was
    not "condition on liberty"); United States v. Johnson, 24 M.J. 796
    (A.C.M.R. 1987), *pet. denied*, 26 M.J. 40 (C.M.A. 1988) (stating in
    another pre-Change 5 case, that cancellation of leave, order not to
    leave area of Frankfurt, Germany, without permission, and order to
    stay away from duty section were not "conditions on liberty");
    United States v. Fowler, 24 M.J. 530 (A.F.C.M.R. 1987) (holding in
    still another pre-Change 5 case, that first sergeant's order not to
    leave base without notification was not "condition on liberty"); and
    United States v. Bradford, 25 M.J. 181 (C.M.A. 1987) (stating under
    circumstances, Navy's shipboard "liberty risk" program was not
    "restriction"). *Compare* United States v. Wilkes, 27 M.J. 571
    (N.M.C.M.R. 1988) (holding application "liberty risk" in that case
    to be subterfuge for pretrial restriction).

[^118]: United States v. Orback, 21 M.J. 610 (A.F.C.M.R. 1985).

[^119]: United States v. Rachels, 6 M.J. 232 (C.M.A. 1979); United
    States v. Amundson, 23 U.S.C.M.A. 308, 49 C.M.R. 598 (1975).

[^120]: *But see* United States v. Brunton, 24 M.J. 566, 570 (N.M.C.M.R.
    1987), holding, without analysis or citation of authority, that
    "\[i\]nvoluntary extension of active duty does not constitute
    restraint within the definition of R.C.M. 707."

[^121]: United States v. Callinan, 32 M.J. 701, 703 (A.F.C.M.R. 1991)
    (emphasis added) (holding that "restriction" had been lifted, hence
    resetting the 120-day clock to "zero" under R.C.M. 707(b)(3)(B),
    even though the accused had remained barred from performing his
    prior duties). *Accord*, United States v. Bolado, 34 M.J. 732
    (N.M.C.M.R. 1991), *aff'd*, 36 M.J. 2 (C.M.A. 1992), *cert. denied*,
    113 S.Ct. 321 (1992).

[^122]: *See, e.g.,* United States v. Edmond, 41 M.J. 419 (1995),
    *vacated on other grounds*, 516 U.S. 802 (1995).

[^123]: 10 U.S.C. § 843 (1994). *See* United States v. Vendivel, 37 M.J.
    854 (A.F.C.M.R.), *rev'd sub nom.*, 38 M.J. 315 (C.M.A. 1993).

[^124]: United States *ex. rel.* Toth v. Quarles, 350 U.S. 1, 76 S.Ct.
    1, 100 L.Ed. 8 (1955); Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1
    L.Ed.2d 1148 (1957); Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2
    L.Ed. 2d 630 (1958) (Black, J., concurring); Kennedy v. Commandant,
    258 F.Supp. 967, 970 (D. Kan. 1966), *aff'd*, 377 F.2d 339 (10th
    Cir. 1967). "The swift trial and punishment which the military
    desires is precisely what the Bill of Rights outlaws." Duncan v.
    Kahanamoku, 327 U.S. 304, 331, 66 S.Ct. 606, 90 L.Ed. 688 (1946).

[^125]: "Due process of law for military personnel is what Congress has
    provided for them . . . ." Burns v. Wilson, 346 U.S. 137, 147, 73
    S.Ct. 1045, 97 L.Ed. 1508 (1953). "This admirable result \[i.e.,
    fairness in the military justice system\] has been achieved, not
    through direct extension of the Bill of Rights to servicemen, but by
    the exercise by Congress of its constitutional powers." Kennedy v.
    Commandant, 258 F.Supp. at 970.

[^126]: "Our armed forces are now stationed in 63 foreign countries . .
    . . They are not thereby deprived of their Constitutional rights and
    privileges. On the contrary, those Constitutional rights and
    privileges are a fundamental part of the military law." United
    States v. Burney, 6 U.S.C.M.A. 776, 21 C.M.R. 98, 123 (1956) (Quinn,
    C.J., concurring). The Bill of Rights applies "unless excluded
    directly or by necessary implication." United States v. Culp, 14
    U.S.C.M.A. 199, 33 C.M.R. 411, 428-429 (1963) (Quinn, C.J.,
    concurring). *Accord*, United States v. Jacoby, 11 U.S.C.M.A. 428,
    29 C.M.R. 244, 246 (1960). "The time is long since past . . . when
    this Court will lend an attentive ear to the argument that members
    of the armed forces are, by reason of their status, *ipso facto*
    deprived of all protections of the Bill of Rights." United States v.
    Tempia, 16 U.S.C.M.A. 629, 37 C.M.R. 249, 253 (1967). *See also*,
    *e.g.,* United States v. Santiago-Davila, 26 M.J. 380 (C.M.A. 1988)
    (Fifth Amendment Due Process Clause includes Equal Protection
    guarantee and bars discriminatory use of peremptory challenges at
    courts-martial); United States v. Matthews, 16 M.J. 354 (C.M.A.
    1983) (military death penalty procedure violates Eighth Amendment);
    Cooke v. Orser, 12 M.J. 335 (C.M.A. 1982) (Fifth Amendment due
    process clause held violated); United States v. Acosta, 11 M.J. 307
    (C.M.A. 1981) (Fourth Amendment protection against unreasonable
    searches and seizures applies, but "unreasonable" construed in a
    military context); United States v. Thurman, 7 M.J. 26 (C.M.A. 1979)
    (military members entitled to equal protection of laws); United
    States v. Annis, 5 M.J. 351 (C.M.A. 1978) (Sixth Amendment right to
    effective assistance of counsel applies); United States v. Crawford,
    15 U.S.C.M.A. 31, 35 C.M.R. 3 (1964) (all constitutional protections
    apply, except rights to indictment by grand jury and trial by petit
    jury). *But see*, United States v. Taylor, 41 M.J. 168 (C.M.A.
    1994); United States v. Lopez, 35 M.J. 35 (C.M.A. 1992). In both
    cases, per Judge Crawford, the court noted that the Supreme Court
    has never expressly applied the Bill of Rights to the military
    justice system, but has assumed such application.

[^127]: United States v. Clay, 1 U.S.C.M.A. 74, 1 C.M.R. 74 (1951).

[^128]: *Clay*, 1 C.M.R. at 77.

[^129]: *Id.* at 77-78.

[^130]: *Id.* at 78.

[^131]: *Clay*'s list of "military due process" rights is "a
    non-exclusive enumeration of its elements." United States v. Young,
    2 U.S.C.M.A. 470, 9 C.M.R. 100, 107 (1953) (Brosnan, J.,
    concurring).

[^132]: United States v. Mark, 47 M.J. 99 (1997) (holding SJA posttrial
    recommendation is important element of military due process); United
    States v. Doctor, 41 C.M.R. 785, 789 (N.C.M.R. 1969) (LaRouche, J.,
    concurring and dissenting) (holding requirement that specification
    state an offense is an element of military due process); United
    States v. Oakley, 27 C.M.R. 560 (A.B.R. 1958) (stating military due
    process includes right to counsel during interrogation, when
    requested, citing United States v. Cates, 9 U.S.C.M.A. 480, 26
    C.M.R. 260 (1958)); United States v. Dobr, 21 C.M.R. 451 (A.B.R.
    1956) (adding right to introduce evidence in both findings and
    sentencing phases of courts-martial as elements of military due
    process, and held blanket prohibition of introduction of classified
    information was violation); United States v. Stein, 8 C.M.R. 467
    (A.B.R. 1952) (explaining military due process includes right to
    effective defense counsel, and denial of ten minute recess to allow
    counsel to prepare for argument deprived accused of that right).

[^133]: United States v. Jerasi, 20 M.J. 719, 723 (N.M.C.M.R. 1985),
    *aff'd*, 23 M.J. 162 (C.M.A. 1986) (emphasis added).

[^134]: "Trial upon charges and specifications *signed under valid oath*
    appears to us to be a part of 'military due process,' the denial of
    which furnishes grounds for setting aside a conviction." United
    States v. Olivieri, 10 C.M.R. 644, 646 (A.F.B.R. 1953) (citation
    omitted) (emphasis added). *Accord*, United States v. Hill, 4 C.M.R.
    597, 599 (A.F.B.R. 1953). "\[I\]t is important to note that the
    failure to properly swear to the charges involves concepts of
    military due process . . . ." United States v. Frage, 26 M.J. 924,
    926 (N.M.C.M.R. 1988), *aff'd*, 27 M.J. 341 (C.M.A. 1988).

[^135]: United States v. McKenzie, 14 U.S.C.M.A. 361, 34 C.M.R. 141
    (1964) (under circumstances, no violation of military due process);
    United States v. Schalck, 14 U.S.C.M.A. 371, 34 C.M.R. 151 (1964)
    (remanded for hearing to determine possible military due process
    violation); United States v. Smith, 39 C.M.R. 315 (A.B.R. 1967)
    (delay between imposition of restriction amounting to "arrest" and
    preferral of charges was unreasonable, oppressive, and violated
    military due process).

[^136]: *Jerasi*, 20 M.J. at 723 (emphasis added).

[^137]: United States v. Mickel, 9 U.S.C.M.A. 324, 26 C.M.R. 104, 107
    (1958), citing Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457,
    86 L.Ed. 680 (1942).

[^138]: *Clay*, 1 C.M.R. at 81.

[^139]: United States v. Berrey, 28 M.J. 714 (N.M.C.M.R. 1989).

[^140]: United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d
    468 (1971).

[^141]: *Marion*, 404 U.S. at 324.

[^142]: *Id.* at 325.

[^143]: *Id.* at 325 n. 18.

[^144]: United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52
    L.Ed.2d 752 (1977).

[^145]: Justice Stevens dissented. However, the basis for his
    disagreement with the majority was that the record did not support
    its wide-ranging opinion. Justice Stevens expressed general
    agreement with the principles espoused by the majority and said he
    would have joined the opinion, had the record provided a sufficient
    foundation for the majority's holding.

[^146]: *Lovasco*, 431 U.S. at 789 (emphasis added).

[^147]: *Id.* at 790 (citation omitted).

[^148]: *Id.* (citations omitted).

[^149]: *Id.* at 795.

[^150]: *Marion*, 404 U.S. at 324; *Lovasco*, 431 U.S. at 795.

[^151]: *See* Hoo v. United States, 484 U.S. 1035, 108 S.Ct. 742, 98
    L.Ed.2d 777 (1988) (order denying cert.) (White, J., dissenting). In
    two other decisions, however, the Supreme Court included dicta which
    touched on the *Marion*-*Lovasco* test. These opinions have added
    little to clarifying the test. Indeed, in one case, the Court's
    dictum added a twist which confused the issue.

    United States v. \$8,850, 461 U.S. 461, 103 S.Ct. 2005, 76 L.Ed.2d
    143 (1983), addressed whether an 18 month delay between seizure of
    currency and initiation of civil forfeiture action violated the
    owner's due process rights. In rejecting the government's argument
    that the *Marion-Lovasco* pre-indictment delay test should apply to
    the forfeiture delay, the Court restated *Marion-Lovasco* as holding
    that a due process claim would prevail "only upon a showing that the
    Government delayed seeking an indictment in a deliberate attempt to
    gain an unfair tactical advantage on the defendant *or in reckless
    disregard of its probable prejudicial impact* upon the defendant's
    ability to defend against the charges." 461 U.S. at 563 (emphasis
    added). The addition of "reckless disregard of probable prejudicial
    impact" as an alternative element to the test was a new feature. If
    this is indeed part of the test, on an equal footing with deliberate
    delay to obtain unfair tactical advantage, it would provide
    defendants with an attractive alternative to proving an improper
    motive. However, the Supreme Court has not repeated this dictum and,
    as we will soon see, it has been virtually ignored by the federal
    circuits.

    In United States v. Gouveia, 467 U.S. 180, 104 S.Ct. 2292, 81
    L.Ed.2d 146 (1984), the Court considered the applicability of the
    Sixth Amendment's right to counsel to penitentiary inmates in
    segregation pending investigation and indictment for new charges. In
    holding against such applicability, the Court stated that the Fifth
    Amendment Due Process Clause would provide relief to a prisoner "if
    the defendant can prove that the Government's delay in bringing the
    indictment *was a deliberate device to gain an advantage over him*
    and that it caused him actual prejudice in presenting his defense,"
    citing *Marion* and *Lovasco*. 467 U.S. at 192 (emphasis added).
    However, this was a passing notation made without any express intent
    to resolve the divergent views as whether deliberate delay for
    tactical advantage was required for a due process violation.

    Notwithstanding the dicta in *\$8,850* and *Gouveia*, it is apparent
    from Justice White's *Hoo* dissent and the split of authority among
    (and, in some cases, within) the circuits, that neither opinion
    should not be considered as an attempt to clarify *Marion* and
    *Lovasco*. Until the Court expressly undertakes this task, the
    federal circuits and the military courts are free to fashion the
    elements of the *Marion-Lovasco* test as they see fit.

[^152]: United States v. Stokes, 124 F.3d 39, 47 (1^st^ Cir. 1997),
    *cert. denied*, \_\_ U.S. \_\_, 118 S.Ct. 1103 (1998); United States
    v. Henson, 945 F.2d 430, 439 (1st Cir. 1991); United States v.
    Acevedo, 842 F.2d 502, 504 (1st Cir. 1988); United States v.
    Lebron-Gonzales, 816 F.2d 823, 831 (1st Cir.), *cert. denied*, 484
    U.S. 843 and 857 (1987).

[^153]: United States v. Ismaili, 828 F.2d 153, 167 (3d Cir. 1987),
    *cert. denied*, 485 U.S. 935 (1988); United States v. Sebetich, 776
    F.2d 412, 429 (3d Cir. 1985), *cert. denied*, 484 U.S. 1017 (1988);
    United States v. Otto, 742 F.2d 104, 107 (3d Cir. 1984). *But see*
    United States v. United States Gypsum Co., 550 F.2d 115, 118 (3d
    Cir.), *cert. denied*, 438 U.S. 915 (1978).

[^154]: United States v. Crouch, 84 F.3d 1497 (5^th^ Cir. 1996) (en
    banc), *cert. denied*, \_\_ U.S. \_\_, 117 S.Ct. 736 (1997) The
    *Crouch* en banc decision recognized divergence of opinion in
    circuit and resolved disparity in favor of requiring delay for
    tactical advantage; United States v. Neal, 27 F.3d 1035 (5th Cir.
    1994); United States v. Beszborn, 21 F.3d 62, 65-66 (5th Cir. 1994);
    Dickerson v. Guste, 932 F.2d 1142 (5th Cir.), *cert. denied*, 502
    U.S.875 (1991); United States v. Varca, 891 F.2d 900, 904 (5th
    Cir.), *cert. denied*, 498 U.S. 878 (1990); United States v.
    Ballard, 779 F.2d 287, 293 (5th Cir.), *cert. denied*, 475 U.S. 1109
    (1986); United States v. Amuny, 767 F.2d 1113, 1119 (5th Cir. 1985).
    *But see* Dickerson v. Louisiana, 816 F.2d 220, 229 n.16 (5th Cir.),
    *cert. denied*, 484 U.S. 956 (1987); United States v. Townley, 665
    F.2d 579, 582 (5th Cir.), *cert. denied*, 456 U.S. 1010 (1982).
    Although its holding was abandoned by later Fifth Circuit decisions,
    the *Townley* opinion contains an eloquent rejection of deliberate
    delay for tactical advantage as a required element of the
    *Marion-Lovasco* test.

[^155]: United States v. Trammell, 133 F.3d 1343, 1351 (10^th^ Cir.
    1998); United States v. Johnson, 120 F.3d 1107, 1109 (10^th^ Cir.
    1997); United States v. Muniz, 1 F.3d 1018, 1024 (10^th^ Cir.),
    *cert. denied*, 510 U.S. 1002 (1993); United States v. Engstrom, 965
    F.2d 836, 838 (10^th^ Cir. 1992); United States v. Comosona, 848
    F.2d 1110, 1113 (10th Cir. 1988); United States v. Padilla, 819 F.2d
    952, 962-963 (10th Cir. 1987); United States v. Jones, 816 F.2d
    1483, 1488 (10th Cir. 1987); United States v. Pino, 708 F.2d 523,
    527 (10th Cir. 1983). *But see* United States v. Vigil, 743 F.2d
    751, 757 (10th Cir.), *cert. denied*, 469 U.S. 1090 (1984)
    (requiring a showing of prejudice *or* intent to gain tactical
    advantage or harass).

[^156]: United States v. Foxman, 87 F.3d 1220, 1222 (11^th^ Cir. 1996);
    United States v. Thomas, 62 F.3d 1332, 1339 (11^th^ Cir. 1995),
    *cert. denied*, 516 U.S. 1166 (1996); United States v. Hayes, 40
    F.3d 362, 365 (11^th^ Cir. 1994), *cert. denied*, 516 U.S. 812
    (1995); United States v. Dyal, 868 F.2d 424, 429 n.2 (11th Cir.
    1989); United States v. Benson, 846 F.2d 1338, 1341 (11th Cir.
    1988); United States v. Russo, 796 F.2d 1443, 1451 (11th Cir. 1986);
    United States v. Caporale, 806 F.2d 1487, 1514 (11th Cir. 1986),
    *cert. denied*, 482 U.S. 917 and 1021 (1987); Stoner v. Graddick,
    751 F.2d 1535, 1543 (11th Cir. 1985).

[^157]: *Lovasco*, 431 U.S. at 790.

[^158]: In the Fourth Circuit, *see* Jones v. Angelone, 94 F.3d 900, 905
    (4^th^ Cir. 1996), *cert. denied*, \_\_ U.S. \_\_, 117 S.Ct. 736
    (1997); Howell v. Barker, 904 F.2d 889, 895 (4th Cir.), *cert.
    denied*, 498 U.S. 1016 (1990); United States v. Automated Medical
    Laboratories, 770 F.2d 399, 403 (4th Cir. 1985); United States v.
    Sample, 565 F.Supp. 1166, 1183 (E.D.Va. 1983). In the Ninth Circuit,
    *see* United States v. Ross, 123 F.3d 1181, 1186 (9^th^ Cir. 1997),
    *cert. denied*, \_\_ U.S. \_\_, 118 S.Ct. 733 (1998); United States
    v. Bracy, 67 F.3d 1421, 1427 (9^th^ Cir. 1995); United States v.
    Contreras, 63 F.3d 852 (9^th^ Cir. 1995); United States v. Huntley,
    976 F.2d 1287, 1290 (9th Cir. 1992); United States v. Sherlock, 962
    F.2d 1349, 1353 (9th Cir. 1992); United States v. Valentine, 783
    F.2d 1413, 1416 (9th Cir. 1986); United States v. Mays, 549 F.2d 670
    (9th Cir. 1977).

[^159]: United States v. Hoo, 825 F.2d 667, 670-671 (2d Cir. 1987),
    *cert. denied*, 484 U.S. 1035 (1988); United States v. Lawson, 683
    F.2d 688, 694 (2d Cir. 1982); United States v. Snyder, 668 F.2d 686,
    689 (2d Cir.), *cert. denied*, 458 U.S. 1111 (1982); United States
    v. DeFabritus, 605 F.Supp. 1538, 1546 (S.D.N.Y. 1985).

[^160]: United States v. Rubin, 609 F.2d 51, 66 (2d Cir. 1979), *aff'd*,
    449 U.S. 424 (1981) (stating delay must violate concepts of fair
    play and decency "such as would occur if the prosecutor deliberately
    used the delay to achieve a substantial tactical advantage").
    *Accord,* United States v. Scarpa, 913 F.2d 993, 1014 (2d Cir.
    1990); and United States v. Ruggiero, 726 F.2d 913, 925 (2d Cir.),
    *cert. denied*, 469 U.S. 831 (1984). *See also* United States v.
    Elsbery, 602 F.2d 1054, 1059 (2d Cir.), *cert. denied*, 444 U.S. 994
    (1974) (holding defendant must show "unjustifiable" government
    conduct); United States v. Birney, 686 F.2d 102, 105 n.1 (2d Cir.
    1982) ("We express no opinion at this time as to the propriety of
    dismissing an indictment for reason of prosecutorial negligence").

[^161]: United States v. Rogers, 118 F.3d 466 (6^th^ Cir. 1997); United
    States v. Scott, 763 F.2d 220, 222 (6th Cir. 1985); United States v.
    Greene, 737 F.2d 572, 575 (6th Cir. 1984); United States v. Brown,
    667 F.2d 566 (6th Cir. 1982).

[^162]: *See* United States v. DeClue, 899 F.2d 1465, 1468 (6th Cir.
    1990); and Payne v. Roos, 738 F.2d 118, 122 (6th Cir. 1984). Both
    cases state that a defendant must prove *either* deliberate delay
    for tactical advantage, *or* that the government had no valid reason
    for the delay.

[^163]: United States v. Pardue, 134 F.3d 1316, 1319 (7^th^ Cir. 1998);
    United States v. Sowa, 34 F.3d 447, 451 (7th Cir. 1994); United
    States v. Fuesting, 845 F.2d 644, 669 (7th Cir. 1988); United States
    v. Brown, 742 F.2d 359, 362 (7th Cir. 1984); United States v.
    Watkins, 709 F.2d 475, 479 (7th Cir. 1983).

[^164]: Aleman v. Judges of Circuit Court of Cook County, 138 F.3d 302,
    U.S. App. LEXIS 4034 at \*21 (7^th^ Cir. 1998); United States v.
    Smith, 80 F.3d 1188, 1191-92 (7^th^ Cir. 1996); United States v.
    Canoy, 38 F.3d 893, 902 (7^th^ Cir. 1994); United States v. Solomon,
    688 F.2d 1171, 1179 (7th Cir. 1982); United States v. King, 593 F.2d
    269 (7th Cir. 1979).

[^165]: United States v. Eckhardt, 843 F.2d 989, 995 (7th Cir.), *cert.
    denied*, 488 U.S. 839 (1988) (stating that "we must defer to the
    government's prosecutorial decision in absence of such a showing
    \[of prejudice by the defendant\]" without mentioning improper
    motive).

[^166]: United States v. Windom, 19 F.3d 1190, 1195 (7th Cir.), *cert.
    denied*, 513 U.S. 862 (1994); Wilson v. McCaughtry, 994 F.2d 1228
    (7th Cir. 1993); Pharm v. Hatcher, 984 F.2d 783, 786 (7th Cir.),
    *cert. denied*, 510 U.S.841 (1993); United States v. Koller, 956
    F.2d 1408, 1415 (7th Cir. 1992); United States v. Hollins, 811 F.2d
    384, 387-388 (7th Cir. 1987); United States v. Williams, 738 F.2d
    172, 175 (7th Cir. 1984).

[^167]: United States v. Benshop, \_\_ F.3d \_\_, 1998 U.S. App. LEXIS
    4469 at \*9-10 (8^th^ Cir. 1998) (calling the standard a "balancing
    test," the opinion seems to require proof of deliberate delay for
    tactical advantage); Bennet v. Lockhart, 39 F.3d 848, 851 (8^th^
    Cir. 1994), *cert. denied*, 514 U.S. 1018 (1995); United States v.
    Miller, 20 F.3d 926, 931 (8th Cir. 1994); United States v. Rudolph,
    970 F.2d 467, 469 (8th Cir. 1992), *cert. denied*, 506 U.S. 1069
    (1993); United States v. Savage, 863 F.2d 595, 598 (8th Cir. 1988),
    *cert. denied*, 490 U.S. 1082 (1989); United States v. Bartlett, 794
    F.2d 1285 (8th Cir.), *cert. denied*, 479 U.S. 934 (1986); United
    States v. Barket, 530 F.2d 189, 192 (8th Cir. 1976) (a pre-*Lovasco*
    case).

[^168]: United States v. Stierwalt, 16 F.3d 282, 285 (8th Cir. 1994);
    United States v. Meyer, 906 F.2d 1247, 1251 (8th Cir. 1990); Young
    v. Lockhart, 892 F.2d 1348, 1354 n.5 (8th Cir. 1989). *See also*
    United States v. Benshop, \_\_ F.3d \_\_, 1998 U.S. App. LEXIS 4469
    at \*9-10 (8^th^ Cir. 1998).

[^169]: United States v. Pierre, No. 86-3086, slip op. at 4-5 (D.C. Cir.
    1987), citing *Lovasco* and the dictum in United States v. \$8,850,
    *supra*.

[^170]: United States v. Rachels, 6 M.J. 232 (C.M.A. 1979).

[^171]: United States v. McGraner, 13 M.J. 408 (C.M.A. 1982).

[^172]: United States v. Vogan, 35 M.J. 32 (C.M.A. 1992).

[^173]: The "U.S.D.B.," located at Fort Leavenworth, Kansas, is the
    primary military prison. Prisoners sentenced to confinement by
    court-martial remain subject to the U.C.M.J. even though their
    discharges from the armed forces may have been formally executed. 10
    U.S.C. § 802(a)(7) (1994).

[^174]: *Vogan*, 35 M.J. at 34 (quoting *Lovasco*, 431 U.S. at 795 n.17)
    (citations omitted).

[^175]: United States v. Reed, 41 M.J. 449, (1995), *cert. denied*, 516
    U.S. 820 (1995).

[^176]: *Id.* at 452.

[^177]: *Id.* at 458 (Wiss, J., dissenting).

[^178]: *Id.* at 460 (Wiss, J., dissenting).

[^179]: United States v. Niles, 45 M.J. 455 (1996).

[^180]: *See* Art. 142(f), U.C.M.J., 10 U.S.C. § 942(f) (1994).

[^181]: In United States v. Cantu, 15 M.J. 534 (A.F.C.M.R. 1982), *pet.
    denied,* 16 M.J. 120 (C.M.A. 1983), the court noted the military
    judge found "no substantial prejudice to the rights of the accused"
    and stated "\[r\]ecent opinions of the United States Supreme Court
    make it clear, in our judgement, that delays such as that in the
    instant case do not necessarily prejudice the rights of an accused."
    *Id.* at 536.

[^182]: "Of course, if there is prejudice *or* intentional governmental
    hindrance to this accused in the preparation of his defense, due
    process issues become a concern." United States v. Robinson, 26 M.J.
    954, 958 n.10 (A.C.M.R. 1988), *aff'd on other grounds*, 28 M.J. 481
    (C.M.A. 1989) (dictum) (emphasis added).

[^183]: United States v. Nelson, 28 M.J. 922 (N.M.C.M.R. 1988); United
    States v. Maresca, 26 M.J. 910 (N.M.C.M.R. 1988), *aff'd on other
    grounds*, 28 M.J. 328 (C.M.A. 1989).

[^184]: United States v. Berrey, 28 M.J. 714, 723 (N.M.C.M.R. 1989)
    (Rubens, J., concurring).

[^185]: United States v. Reeves, 34 M.J. 1261 (N.M.C.M.R. 1992).

[^186]: United States v. Devine, 36 M.J. 673 (N.M.C.M.R. 1992).

[^187]: *Reeves*, 34 M.J. at 1262; Devine, 36 M.J. at 677.

[^188]: *Reeves*, 34 M.J. at 1261. There has also been one unpublished
    case from the Navy-Marine Corps Court of Criminal Appeals handed
    down since the Court of Appeals for the Armed Forces' *Reed*
    opinion. In United States v. Busby, No. 9601087, 1996 CCA LEXIS 456
    (N.M. Ct. Crim. App. 1996), the court heard a government appeal of a
    dismissal of two of four charges based on pre-preferral delay that
    the military judge ruled violated due process. The court stated the
    test as whether the accused had proven "egregious or tactical delay"
    and actual prejudice. Applying an abuse of discretion standard, the
    court upheld the military judge's dismissal for one of the affected
    charges, but reversed as to the other because of failure to prove
    prejudice. This result would support a standard that does not
    necessarily require "bad motive" as a prerequisite for a due process
    violation, as the military judge's findings did not include as
    finding of intentional delay for tactical advantage. Nonetheless,
    the standard stated in the opinion is still ambiguous. Moreover,
    according to the admonition printed by the court on its slip
    opinion, an unpublished opinion is not to be cited as precedent. In
    any event, *Busby* serves as an interesting curiosity as one of the
    very few "published" appellate decisions granting an accused any
    relief based on excessive pre-preferral or pre-indictment delay.

[^189]: *See, e.g.*, United States v. Johnson, 120 F.3d 1107, 1109
    (10^th^ Cir. 1997); United States v. Bracy, 67 F.3d 1421, 1427
    (9^th^ Cir. 1995); United States v. Comosona, 848 F.2d 1110, 1113
    (10th Cir. 1988); United States v. Antonio, 830 F.2d 798 (7th Cir.
    1987); United States v. Shaw, 555 F.2d 1295 (5th Cir. 1977).

[^190]: *See, e.g.*, United States v. Crouch, 835 F.Supp. 938, 942
    (S.D.Tex. 1993), *reversed*, 84 F.3d 1497 (5^th^ Cir. 1996) (en
    banc), *cert. denied*, \_\_ U.S. \_\_, 117 S.Ct. 736 (1997); Bennet
    v. Lockhart, 39 F.3d 848, 851 (8^th^ Cir. 1994), *cert. denied*, 514
    U.S. 1018 (1995); United States v. Canoy, 38 F.3d 893, 902 (7^th^
    Cir. 1994); United States v. Mays, 549 F.2d 670 (9th Cir. 1977).

[^191]: United States v. Antonio, 830 F.2d 798 (7th Cir. 1987).

[^192]: *See* United States v. Perales, 838 F.Supp. 196 (M.D.Pa. 1992).

[^193]: *See, e.g.,* United States v. Stokes, 124 F.3d 39, 47 (1^st^
    Cir. 1997), *cert. denied*, \_\_ U.S. \_\_, 118 S.Ct. 1103 (1998);
    United States v. Smith, 80 F.3d 1188, 1191-92 (7^th^ Cir. 1996);
    United States v. Contreras, 63 F.3d 852 (9^th^ Cir. 1995).

[^194]: *See, e.g.,* United States v. Lovasco, 431 U.S. 783, 97 S.Ct.
    2044, 52 L.Ed.2d 752 (1977); United States v. Benshop, \_\_ F.3d
    \_\_, 1998 U.S. App. LEXIS 4469 at \*9-10 (8^th^ Cir. 1998); United
    States v. Pardue, 134 F.3d 1316, 1319 (7^th^ Cir. 1998); United
    States v. Trammell, 133 F.3d 1343, 1351 (10^th^ Cir. 1998); United
    States v. 123 F.3d 1181, 1186 (9^th^ Cir. 1997), *cert. denied*,
    \_\_ U.S. \_\_, 118 S.Ct. 733 (1998); United States v. Rogers, 118
    F.3d 466 (6^th^ Cir. 1997); Jones v. Angelone, 94 F.3d 900, 905
    (4^th^ Cir. 1996), *cert. denied*, \_\_ U.S. \_\_, 117 S.Ct. 736
    (1997); United States v. Crouch, 835 F.Supp. 938 (S.D.Tex. 1993),
    *reversed*, 84 F.3d 1497 (5^th^ Cir. 1996) (en banc), *cert.
    denied*, \_\_ U.S. \_\_, 117 S.Ct. 736 (1997); Biskup v. McCaughtry,
    20 F.3d 245, (7th Cir. 1994), *cert. denied*, 516 U.S. 1172 (1996);
    United States v. Mills, 704 F.2d 1553 (11 Cir. 1983); United States
    v. Lindstrom, 698 F.2d 1154 (11th Cir. 1983); United States v. Shaw,
    555 F.2d 1295 (5th Cir. 1977); United States v. Barket, 530 F.2d 189
    (8th Cir. 1976).

[^195]: According to a recent federal circuit court decision, there has
    only been two cases since 1975 where defendants have demonstrated
    prejudice from pre-indictment delay sufficiently severe to prove a
    due process violation. United States v. Henry, 815 F.Supp. 325, 327
    n.3 (D.C. Ariz. 1993), citing *Barket*, 530 F.2d 189, and Howell v.
    Barker, 904 F.2d 889, 895 (4th Cir.), *cert. denied*, 498 U.S. 1016
    (1990). The author's research has disclosed no other federal cases.
    *Cf.* *Foxman*, 87 F.3d at 1222-23, where the Eleventh Circuit held
    that the trial judge had not abused his discretion in finding the
    defendant had been prejudiced by pre-indictment delay due to the
    deaths of several witnesses, but nonetheless reversed his due
    process dismissal of the indictment because of the defendant's
    failure to prove deliberate delay for tactical advantage. As
    described at footnote 187, *supra*, the Navy--Marine Corps Court of
    Criminal Appeals recently issued an unpublished decision partially
    upholding a military judge's dismissal of charges on pre-preferral
    delay grounds. United States v. Busby, No. 9601087, 1996 CCA LEXIS
    456 (N.M. Ct. Crim. App. 1996)*.*

[^196]: United States v. Pino, 708 F.2d 523, 528 n.8 (10th Cir. 1983).

[^197]: *Marion,* 404 U.S. at 320. *See also*, United States v.
    MacDonald, 456 U.S. 1, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982).

[^198]: *See* United States v. Shaw, 555 F.2d 1295 (5th Cir. 1977)
    (defendant alleged deteriorating health over period of
    pre-indictment delay prevented intelligent assistance in his
    defense).

[^199]: *Bartlett*, 794 F.2d at 1290 (emphasis added).

[^200]: *See, e.g., MacDonald,* 456 U.S. at 10: Between the dismissal of
    Doctor MacDonald's military charges and his discharge from the Army,
    and his federal civilian indictment nearly five years later, "he was
    free to go about his affairs, to practice his profession, and to
    continue his life."

[^201]: Captain Clinton C. Pearson & Captain William P. Bowen,
    *Unreasonable Prepreferral Delay---Don't Confuse It with Lack of
    Speedy Trial*, 10 A.F. JAG Reptr. 73, 77 (1981).

[^202]: United States v. Vogan, 35 M.J. 32, at 34 (C.M.A. 1992).

[^203]: United States v. Reeves, 34 M.J. 126, at 1263 (N.M.C.M.R. 1992).
    *Accord*, United States v. Devine, 36 M.J. 673, 677 (N.M.C.M.R.
    1992) (due process is concerned with "whether the passage of time
    caused evidence to be lost, memories of witnesses to be impaired, or
    the loss of witnesses altogether").

[^204]: United States v. Reed, 41 M.J. 449, *cert. denied*, 516 U.S. 820
    (1995).

[^205]: *Reed*, 41 M.J. at 461 (Wiss, J., dissenting). Also, in the
    Navy-Marine Corps Court of Criminal Appeals' unpublished *Busby*
    opinion (*see* fn. 187, *supra*), that court expressly rejected the
    military judge's reliance on hardship to satisfy the prejudice prong
    of the test. 1996 CCA LEXIS 456 at \*14.

[^206]: The closest case is *Reed*, where the accused suffered a mere 23
    days on "legal hold" before charges were preferred, thereby
    conferring the protection of the Sixth Amendment's Speedy Trial
    Clause and R.C.M. 707.

[^207]: United States v. Clay, 1 C.M.R. 74, 77 (1951).

[^208]: United States v. Frage, 26 M.J. 924 (N.M.Crim.App. 1988); United
    States v. Olivieri, 10 C.M.R. 644, 646 (A.F.B.R. 1953); and United
    States v. Hill, 4 C.M.R. 597 (A.F.B.R. 1953).

[^209]: United States v. Berrey, 28 M.J. 714 (N.M.C.M.R. 1989).

[^210]: *Berrey*, 28 M.J. at 718.

[^211]: In the Air Force, see AFI 90-302, Inspector General Complaint
    System (1 February 1994).

[^212]: *See* 10 U.S.C. § 1034 (1994).

[^213]: 10 U.S.C. § 938 (1994). In the Air Force, *see also* AFI 51-904,
    Complaints of Wrongs Under Article 138, Uniform Code of Military
    Justice (30 June 1994).

[^214]: A common example of the latter situation would be a "drug bust"
    involving several persons where the evidentiary posture of the cases
    required certain trials to go before others, thus helping to perfect
    the prosecution cases in later trials. This type of delay, which is
    intended to enhance the availability of prosecution evidence (e.g.,
    convicting Airman X first, thus providing her clemency incentive to
    testify against Sergeant Y), should be distinguished from bad faith
    delay designed to hamper an accused's ability to put on a defense
    (e.g., intentionally delaying preferral until the accused's
    supporters have been reassigned elsewhere).

[^215]: United States v. Townley, 665 F.2d 579, 582 (5th Cir.), *cert.
    denied*, 456 U.S. 1010 (1982) (citation omitted). Ironically, as has
    been discussed above, Fifth Circuit authority as a whole appears
    firmly in the "improper motive" camp.

[^216]: United States v. Crouch, 835 F.Supp. 938, 942 (S.D.Tex. 1993),
    *reversed*, 84 F.3d 1497 (5^th^ Cir. 1996) (en banc), *cert.
    denied*, \_\_ U.S. \_\_, 117 S.Ct. 736 (1997) (citation omitted).

[^217]: Howell v. Barker, 904 F.2d 889, 895 (4th Cir.), *cert. denied*,
    498 U.S. 1016 (1990).

[^218]: *But see* United States v. Whitty, 688 F.Supp. 48, 57 (D.C.Me.
    1988), which held the government's "improper motive" was shown by
    its *failure to explain* the pre-indictment delay. There has been no
    other case where a mere failure to explain has been equated to an
    "improper motive." The *Whitty* approach is flawed and, in the
    author's opinion, intellectually dishonest. It appears that the
    *Whitty* court in reality applied a balancing test, while paying lip
    service to the prevailing First Circuit rule requiring improper
    motive as a mandatory element of the *Marion-Lovasco* test.

[^219]: United States v. Williams, 738 F.2d 172, 175 n.2. (7th Cir.
    1984).

[^220]: United States v. Rachels, 6 M.J. 232, 236 (C.M.A. 1979).

[^221]: Pearson and Bowen, *supra* note 200, at 77.

[^222]: During the hearing before the military judge on Sergeant
    Croker's motion to dismiss, the author argued that "if the
    prosecution's contention \[that only prejudice to Sergeant Croker's
    ability to defend himself at trial is relevant\] is taken to its
    logical---or, in our view, illogical---conclusion, then the
    government could cut him up in pieces and feed him to the *koi* fish
    in the pond in front of the Officers' Club without violating his due
    process rights."

[^223]: 10 U.S.C. § 851(c) (1994).

[^224]: Decisions of military trial judges to dismiss charges on this
    ground, as with any dismissal ruling, may be appealed by the
    government to the respective service's Court of Criminal Appeals
    and, if necessary, to the United States Court of Appeals for the
    Armed Forces. 10 U.S.C. § 862 (1994); R.C.M. 908, *supra* note 2.

[^225]: 10 U.S.C. § 937 (1994).

[^226]: The author has given these briefings many times, to Air Force
    enlisted personnel, senior and mid-level commanders, officer and
    noncommissioned officer professional military education courses, and
    classes of new military lawyers.