Like any citizen facing trial, a servicemember facing court-martial has the right to a speedy trial.  In fact, he has four separate speedy trial rights.  If the Government violates these rights, the case may be dismissed.

Under Rule 707 of the Rules for Court-Martial, the servicemember is supposed to be brought to trial within 120 days after charges are preferred (typically, when the commander reads him the charges), or the date he is placed in pretrial confinement.   However, judges and commanders have the power to “stop the clock,” so that trial may take much longer than this without violating the rule.  Also, a judge can dismiss a case “without prejudice” under this rule, meaning that the Government can often start the case again—unless the Government has run past a statute of limitations or violated one of the other speedy trial rights.

Under Article 10 of the Uniform Code of Military Justice, when the command puts a servicemember in pretrial confinement, they are supposed to take “immediate steps” to inform him of the charges against him and to try him.  Sometimes this can lead to a tighter timeline than Rule 707, and cases have been dismissed in well under 120 days if the command did not proceed diligently.  The court will examine the behavior of the prosecution, and how diligently it was moving the case forward, in deciding whether to dismiss.

Under the Sixth Amendment to the United States Constitution, every citizen has the right to a “speedy and public trial” once he is charged or arrested.  Typically, courts do not dismiss cases on Sixth Amendment grounds for delays of less than a year, and even longer delays may be acceptable depending on the circumstances.   Courts consider the defendant’s own behavior, including whether he is asking for a speedy trial and conducting his defense accordingly, in deciding whether to dismiss for a violation of this right.

The Fifth Amendment right to “due process of law” also includes a speedy trial right, one which is rarely invoked at court-martial, but which can prove important in certain rare cases.   This right is most relevant to “cold cases” where important evidence may have been lost before charges were even brought, especially if the Government had improper motives for delaying the prosecution.

Different rules and precedents govern these four rights, and different cases call for different speedy trial strategies.  Sometimes the defendant is better off with the fastest process possible, and should be asking for a speedy trial early and often.  Sometimes the defendant is better off with delay, and should be keeping quiet.   An experienced attorney is the best source of advice as to which rights matter in a given case, and which strategy is best to pursue.

Joseph D. Wilkinson II is a senior counsel in Tully Rinckey PLLC’s Washington, DC office, where he focuses his practice on military law and federal employment law. Mr. Wilkinson served 20 years in the Armed Forces, serving in the U.S. Army, U.S. Army Reserve, and Alabama Army National Guard. He served two tours in Iraq, and retired from Army service in 2023.  He can be reached at (888)-529-4543 or at info@tullylegal.com.