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18 Reporter 1 (1991)
R.C.M. 707 the New Speedy Trial Rules

handle is hein.journals/report18 and id is 95 raw text is: VOL 18, NO. 4 R.C.M. 707 AND THE NEW SPEEDY TRIAL RULES By Captain Eric D. Placke Change 5 to the Manual for Courts-Martial, Executive Order No. 12767, 27 June 19 91, made a number of important changes in the way we do business in military justice. Perhaps the most significant, and one that is of immediate concern to all Air Force practitioners, is the dra- matic revision of Rule for Court-Martial 707, the rule governing an accused's right to a speedy trial. Although the wisdom and utility of the changes in the speedy trial rule will likely be the subject of some debate, such is beyond the scope of this article. Rather, my objective is merely to describe the changes in a way that is understandable to those familiar with the old rules, and useful to those who work in military justice. For convenience sake, the changes in the speedy trial rules can be grouped into four cate- gories: inception and termination dates, exclu- sions and delays, the Burton rule, and remedies. As we will see, major changes have been made in each category. INCEPTION AND TERMINATION DATES Change 5 revised both the general rules govern- ing inception and termination dates, and the rules governing several special situations. We will examine the changes to the general rules first, and then each of the special situations. Under prior practice, the earlier of any of three trigger events would start the 120 day speedy trial clock: entry on active duty (for reservists ordered to active duty under R.C.M. 204), imposition of pretrial restraint under R.C.M. 304(a)(2)-(4) (restriction in lieu of arrest, arrest, or pretrial confinement), or notice of preferral of charges. This sometimes resulted in litigation when there was a delay between preferral itself, and subsequent notice to the accused of that preferral. United States v. Maresca, 28 M.J. 328 (C.M.A. 1989); Thomas v. Eddington, 26 M.J. 95 (C.M.A. 1988). In an effort to close a potential loophole for the government, and avoid need- less litigation, the basic rule on trigger events was changed. Entry on active duty under R.C.M. 204 or imposition of pretrial restraint under R.C.M. 304(a)(2)-(4) will still start the clock, but otherwise an accused must no longer wait until notified that charges have been pre- ferred against him for the government's accoun- tability to begin. Rather, preferral itself is now the third possible trigger event, and will start the clock if it isn't already ticking. R.C.M. 707(a). As with prior practice, the day of the trigger event does not count for purposes of computing the 120 day limit. R.C.M. 707(b)(1). The waty in which the clock stops has also been changed. Under the old rules, an accused was brought to trial when either a guilty plea was entered, or the presentation to the factfinder of evidence on the merits began. Now, in all cases, the accused is considered to have been brought to trial, and thus the clock stops, at arraignment. R.C.M. 707(b)(1). Again, as with prior practice, the day the accused is brought to trial does count for purposes of computing the 120 day limit. R.C.M. 707(b)(1). In addition to these changes in the general rules regarding inception and termination dates, the rules governing several special situations have been either clarified or changed. In two of these special situations, the substance of the rule remains unchanged. In the event of multiple charges, under both prior practice and the new rules, the inception date for the gov- ernment's speedy trial accountability is deter- mined separately for each charge. R.C.M. 707(b)(2). Likewise, although reworded, the rule remains essentially the same in those cases where an accused in pretrial restraint is released before charges have been preferred. In such cases, if the accused is released for a signifi- cant period, the speedy trial clock will begin The Repoir

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