Comment on Convoluted Paths

"ON DAY NUMBER 1, EVERYONE ASSOCIATED WITH A CASE SHOULD KNOW WHAT DAY WILL BE NUMBER 120."

United States v. Carlisle, 25 M.J. 426, 428 (C.M.A. 1988); see also United States v. Wilson, 72 M.J. 347, 358 (C.A.A.F. 2013) (Cox, S.J., dissenting).

That declaration — capitalized, underlined, emphatic by design — states the obvious: something every military prosecutor already knows the moment a case begins (as does the defense counsel). Under Rule for Courts-Martial 707, Day 120 does not sneak up on the government. It is visible from the first day of pretrial confinement or the preferral of charges, whichever comes first. The 120-day clock runs without interruption. It does not pause for holidays, deployments, administrative inconvenience, or prosecutorial indecision. When Day 120 arrives, and the accused has not been arraigned, the military judge must dismiss the charges, with or without prejudice, depending on the circumstances.

The system, however, does build in legitimate mechanisms for managing the clock, but the prosecution bears the burden of using them properly and transparently.

 Before referral, the Article 32, UCMJ, preliminary hearing officer (PHO), acting with delegated authority, may exclude defined periods of delay from the RCM 707 clock — time consumed by necessary investigative steps, witness availability issues, or other documented cause that legitimately impedes the forward progress of the case. It can take up to six months to get DNA results or Digital Forensic Examinations. After referral and assignment of a military judge, authority to exclude time passes to the bench. For example, when a sanity board (R.C.M.706) is ordered to assess the accused's mental capacity to stand trial and at the time of the offenses. The time the board takes to complete its evaluation, report its findings, and allow the parties to respond does not count against the government's 120-day obligation, provided the judge makes the appropriate findings and enters the exclusion on the record.

But those exclusions are tools of adjudication, not prosecutorial escape hatches. The prosecution cannot bank on them in advance, or assume them, or treat the possibility of future exclusions as a license to move slowly on everything else. The clock runs every day, not formally excluded. And the Article 10 obligation — which activates the moment the accused enters confinement, regardless of RCM 707 and its exclusions — demands reasonable diligence throughout, including excluded periods. A sanity board exclusion stops the RCM 707 clock. It does not suspend the government's constitutional and statutory obligation to push every other aspect of the case forward while the board does its work. The confined accused remains confined. The obligation to move remains.

Carlisle told every military prosecutor in the United States everything they needed to know. The clock starts on Day 1. The exclusions that exist are known, defined, and limited. Everything else runs. The only question is whether the prosecution treats that reality as a discipline or as an afterthought.

But RCM 707 is not the most demanding clock in the system. It is not even the first one to start running.

The Sixth Amendment to the United States Constitution guarantees every accused the right to a speedy and public trial. In the military justice system, that guarantee takes on an additional and considerably more demanding dimension the moment the government places an accused in pretrial confinement — or imposes restrictions tantamount to confinement. At that moment, before charges are formally preferred, before the RCM 707 clock even begins, Article 10 of the UCMJ activates. When any person subject to the UCMJ 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. United States Court of Appeals for the Armed Forces Congress chose the word "immediate" deliberately. The government does not get a grace period. It does not get a reasonable time to organize itself. It gets the moment confinement begins — and from that moment forward it must move.

Article 10 of the UCMJ is a fundamental, substantial, personal right, designed to ensure that the accused knows the reason for the restraint of his liberty, and to protect him, while under restraint, from unreasonable or oppressive delay in disposing of a charge of alleged wrongdoing, either by trial or by dismissal. United States Court of Appeals for the Armed Forces The standard Article 10 imposes is reasonable diligence — not constant motion, but purposeful, documented forward progress. Brief periods of inactivity in an otherwise active prosecution will not necessarily doom the government's case. But institutional drift, administrative delay, and prosecutorial inattention will. Article 10 does not demand constant motion, but it does impose on the government the standard of reasonable diligence in bringing the charges to trial. United States Court of Appeals for the Armed Forces

The pressure Article 10 places on the prosecution is qualitatively different from — and greater than — the pressure RCM 707 applies. As the Court of Appeals for the Armed Forces has consistently held, Article 10 creates a more exacting speedy trial demand than does the Sixth Amendment. United States Court of Appeals for the Armed Forces The reason is structural: the military has no bail system. A civilian accused can often secure release pending trial. A confined service member cannot. The government holds that person in confinement, controls the pace of the prosecution, and bears the full weight of the constitutional and statutory obligation to move the case forward with diligence. The power to confine carries the obligation to prosecute. The two are inseparable.

Critically, RCM 707 and Article 10 operate as distinct and non-substitutable obligations. The fact that a prosecution meets the 120-day rule of RCM 707 does not directly or indirectly demonstrate that the government moved to trial with reasonable diligence as required by Article 10. United States Court of Appeals for the Armed Forces A prosecution can satisfy the bright-line ceiling of RCM 707 and still violate Article 10 by failing to move with the diligence that confinement demands. Conversely, a dismissal under RCM 707 is neither carte blanche for the government to overlook its obligation to proceed with reasonable diligence under Article 10, nor an invitation to take a second bite at perfecting a case and cause further delay based on information previously known to it. United States Court of Appeals for the Armed Forces The government cannot reset its Article 10 obligations simply by dismissing and refiling charges. The confined accused's liberty interest does not reset with the paperwork.

So the architecture, fully assembled, looks like this: the Sixth Amendment sets a constitutional floor. Article 10 raises that floor the instant confinement begins, demanding immediate action and continuous reasonable diligence for as long as the accused remains confined. RCM 707 then adds a hard 120-day ceiling on top of everything else — a ceiling that, as Carlisle makes permanently clear, the prosecution has known about since Day 1. The confined accused sits at the intersection of all three obligations simultaneously, with the government bearing the burden under each.

Institutional Governance Implications: The CMPS and the OSTC After Jacques

The courtroom is the last place a prosecution should fail. Jacques is a reminder that it often fails long before anyone takes the oath.

The CMAC's dismissal of both appeals in R v Jacques closes a file that consumed nearly seven years of institutional resources and, in the process, ended a military career. Chief Justice Gleason's unanimous judgment does not, apparently, break new doctrinal ground — the Jordan framework is well established, and its application at court martial is no longer seriously contested. What Jacques does instead is hold up a mirror to the Canadian Military Prosecution Service and ask a pointed institutional question: how does a prosecution take seven years?

The CMPS Governance Problem

The Canadian Military Prosecution Service operates within a command environment that creates delay pressures civilian Crown prosecutors rarely encounter. Witnesses deploy. Accused members post or release. Investigating officers rotate. The institutional machinery that sustains a prosecution — witnesses, documents, institutional memory — disperses faster in a military context than in any civilian jurisdiction.

[Re-read Rory's post]

The American Parallel: The Office of the Special Trial Counsel

The United States military justice system has recently undertaken its own significant institutional restructuring — one that offers an instructive, if imperfect, parallel to the governance questions Jacques raises for the CMPS.

The National Defense Authorization Act for FY 2022 brought substantial changes and updates to the UCMJ and military justice system, including the creation of the Office of the Special Trial Counsel (OSTC). TJAGLCS The OSTC represents a structural departure from the traditional convening authority model that long governed American military prosecutions. Under the traditional model, the convening authority — a commander — held significant control over the referral of charges to court-martial. The OSTC removes that control for covered offenses, centralizing prosecution decision-making in a dedicated office that operates independently of the command chain.

The governance logic behind the OSTC is directly relevant to the Jacques problem. Decentralized prosecution decision-making — decisions made by individual legal officers responding to immediate command pressures — produces inconsistent file management, inconsistent timelines, and inconsistent outcomes. Centralized prosecution authority, by contrast, creates institutional accountability. When a single office owns a file from referral through appeal, that office has both the visibility and the incentive to manage delay as a systemic risk.

The CMPS does not face the same command-influence pressures that animated the creation of the OSTC — the Canadian military justice system addressed command influence concerns through different structural reforms. But the OSTC's underlying governance insight translates: prosecution services that manage cases as an institutional portfolio, rather than as a collection of individual files owned by individual prosecutors, catch delay problems earlier and respond to them more effectively.

Two Systems, One Lesson?

The UCMJ framework gives American military prosecutors structural tools that the Jordan framework denies their Canadian counterparts. Absent a subterfuge, a dismissal of charges stops the 120-day clock and a new 120-day clock is started on the day of dismissal. United States Court of Appeals for the Armed Forces Canadian prosecutors cannot reset the Jordan clock in the same way. Once a case crosses the presumptive ceiling, the burden shifts — and in a seven-year case, no amount of justification reconstructs a reasonable timeline.

But the UCMJ's structural flexibility carries its own risks. A dismissal under RCM 707 is neither carte blanche for the government to overlook its obligation to proceed with reasonable diligence under Article 10, nor an invitation to take a second bite at perfecting a case and cause further delay based on information previously known to it. United States Court of Appeals for the Armed Forces American military prosecutors who treat the 120-day reset as a delay management tool rather than an emergency measure will find Article 10 and the Sixth Amendment waiting for them. The OSTC's centralized structure addresses this risk by creating institutional visibility into cases where resets are becoming a pattern.

Disclaimer: To the extent Jacques and the Canadian system have been misunderstood, all apologies to Brother Rory.