United States v. Moreno

delivered the opinion of the court.

Corporal Javier A. Moreno Jr. was tried by general court-martial for the offense of rape in violation of Article 120, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920 (2000). Moreno entered a plea of not guilty but was convicted by members who subsequently sentenced him to a dishonorable discharge, confinement for six years, forfeiture of all pay and allowances, and reduction to the lowest enlisted grade. The convening authority approved the sentence and the United States Navy-Marine Corps Court of Criminal Appeals affirmed the findings and sentence in an unpublished decision. United States v. Moreno, No. NMCCA 200100715, 2004 CCA LEXIS 118 (N.M.Ct. Crim.App. May 13, 2004). We granted review of three issues.1

An accused is entitled to a trial by members who are qualified, properly selected, and impartial. See Article 25, UCMJ, 10 U.S.C. § 825 (2000). Moreno claims that Lieutenant Colonel (LtCol) F, the president of his court-martial, should have been removed because he had conducted an investigation of the case, had extensive knowledge of this case and that of Moreno’s co-accused, and was married to a rape counselor who had previously worked at the family advocacy office where the alleged victim was counseled. We conclude that the presence of LtCol F on the panel created substantial doubt about the fairness and impartiality of this court-martial and that the military judge erred in denying the challenge for cause against LtCol F.2

Due process entitles convicted servicemembers to a timely review and appeal of court-martial convictions. Toohey v. United States, 60 M.J. 100, 101 (C.A.A.F.2004). Moreno asserts that he was denied due process because there was unreasonable delay in the 1,688 days between the end of his trial and the date upon which the United States Navy-Marine Corps Court of Criminal Appeals rendered its decision in his case. We conclude that Moreno was denied his due process right to speedy appellate review and we find that under the circumstances of this case relief is warranted.

BACKGROUND

Moreno worked in the comptroller’s disbursing office. Among the members detailed to Moreno’s court-martial was LtCol F, the deputy comptroller. Lieutenant Colonel F was advised of the incident that gave rise to the rape charge by Moreno’s officer-in-charge. Lieutenant Colonel F decided to look into the incident further so that he could *133brief the comptroller. In the course of his inquiry into the incident, LtCol F became aware of information that had been entered into various logbooks. He spoke to some of the duty officers who had knowledge of the incident and he read various articles that were published in Stars and Stripes. Lieutenant Colonel F described his efforts to gather this information as “simply fact finding. You know, I wanted to be able to get all the—find out what was being reported in the logbook and just so I had a complete picture before I talked to my boss on what he would be hearing Monday morning.”

In addition to his personal inquiries into the incident, LtCol F became aware of Moreno’s co-accused’s case based on what he read in Stars and Stripes. Lieutenant Colonel F’s pretrial knowledge of the incident and the subsequent criminal cases included: (1) that the incident involved drinking at the club; (2) that the victim may have been drugged; (3) that there had been sexual contact; (4) that both Moreno and his co-accused were placed in pretrial confinement; (5) that the co-accused could be a witness at Moreno’s trial; and (6) that there were delays in Moreno’s trial relating to obtaining the co-accused’s presence at Moreno’s trial.

Defense counsel challenged eight members appointed by the convening authority on a variety of grounds. The defense asserted that LtCol F could not be impartial because he “followed this case closely” and had “read everything involving this case.” The Government responded that the defense counsel had failed to state a reason for a challenge under Rule for Courts-Martial (R.C.M.) 912, Manual for Courts-Martial, United States (2005 ed.) (MCM).3 The military judge, while granting seven of the eight challenges for cause, denied the challenge against LtCol F without comment. The defense counsel then exercised a peremptory challenge against another member. Ultimately, LtCol F served as president of the court-martial.

Moreno was sentenced on September 29, 1999. Two hundred eight days later, the 746-page record of trial was authenticated by the military judge. On January 31, 2001, 490 days after completion of the trial, the convening authority took action. Seventy-six days later, the ease was docketed at the Navy-Marine Corps Court of Criminal Appeals.

The Navy-Marine Corps Court of Criminal Appeals granted eighteen motions for enlargement of time to Moreno’s appellate defense attorney before the defense brief was filed on March 20, 2003 (702 days from docketing). The Government filed an answer brief on October 29, 2003 (223 days from submission of Moreno’s brief). The Court of Criminal Appeals issued its unpublished decision on May 13, 2004 (197 days from the completion of briefing). Four years, seven months and fourteen days (1,688 days) elapsed between the completion of trial and the completion of Moreno’s appeal of right under Article 66, UCMJ, 10 U.S.C. § 866 (2000).

DISCUSSION

Implied Bias

Moreno asserts that LtCol F’s presence on his court-martial panel undermined public confidence in military justice and that, under the liberal grant mandate, the military judge should have granted the challenge for cause. The Government argues that some knowledge of the facts does not serve to disqualify a potential court member and that the totality of the circumstances reveals that Moreno did not meet his burden of showing a substantial doubt as to the legality, fairness or impartiality of the trial.

Rule for Courts-Martial 912 includes challenges based upon the distinct concepts of actual bias and implied bias. United States v. Napoleon, 46 M.J. 279, 283 (C.A.A.F.1997); United States v. Minyard, 46 M.J. 229, 231 (C.A.A.F.1997). In this case we are concerned with the possibility of implied bias under R.C.M. 912(f)(l)(N), which provides a basis for challenge when it appears an individual “[sjhould not sit as a member in the interest of having the court-martial free from *134substantial doubt as to legality, fairness, and impartiality.”

The test for implied bias is objective. Viewing the circumstances through the eyes of the public and focusing on the perception or appearance of fairness in the military justice system, we ask whether, despite a disclaimer of bias, most people in the same position as the court member would be prejudiced. United States v. Napolitano, 53 M.J. 162, 167 (C.A.A.F.2000); United States v. Warden, 51 M.J. 78, 81 (C.A.A.F.1999). We look to determine whether there is “too high a risk that the public will perceive” that the accused received less than a court composed of fair, impartial, equal members. United States v. Wiesen, 56 M.J. 172, 176 (C.A.A.F.2001). We review rulings on challenges for implied bias under a standard that is less deferential than abuse of discretion, but more deferential than de novo review. United States v. Armstrong, 54 M.J. 51, 54 (C.A.A.F.2000); Napoleon, 46 M.J. at 283.

In reviewing a ruling on a challenge for cause, we remain mindful of the liberal grant mandate. “[M]ilitary judges must follow the liberal-grant mandate in ruling on challenges for cause” asserted by an accused. United States v. White, 36 M.J. 284, 287 (C.M.A.1993); see also United States v. James, 61 M.J. 132, 139 (C.A.A.F.2005); United States v. Downing, 56 M.J. 419, 422 (C.A.A.F.2002). The liberal grant mandate recognizes the unique nature of military courts-martial panels, particularly that those bodies are detailed by convening authorities and that the accused has only one peremptory challenge. See James, 61 M.J. at 139; Downing, 56 M.J. at 422; United States v. Rome, 47 M.J. 467, 469 (C.A.A.F.1998); United States v. Hamilton, 41 M.J. 22, 25 (C.M.A.1994). Thus, we will overturn a military judge’s ruling on an accused’s challenge for cause where he clearly abuses his discretion in applying the liberal grant mandate.

Implied bias should be invoked sparingly. United States v. Strand, 59 M.J. 455, 458 (C.A.A.F.2004) (citing Warden, 51 M.J. at 81-82); Rome, 47 M.J. at 469. Nevertheless, we are not reluctant to apply the doctrine to ensure the appearance of fairness in courts-martial. Thus, in Minyard, 46 M.J. at 231-32, we reversed a conviction where the wife of an investigating agent who worked on the ease was allowed to sit on the panel. In Wiesen, 56 M.J. at 175-77, we reversed a conviction where the president of the court-martial and his military subordinates comprised two-thirds of the panel. Similarly, in United States v. Miles, 58 M.J. 192, 195 (C.A.A.F.2003), we reversed a conviction for use of cocaine where the military judge denied a challenge to a member whose nephew died from complications associated with his mother’s prenatal use of cocaine.4

From the outset, LtCol F took an active interest in this case. He took it upon himself to seek out information so that he could get a “complete picture” to brief his boss, the comptroller. His preparations for the briefing included conducting personal interviews of duty officers and reading entries in various log books. Once he had gathered the information to brief the comptroller, his interest in Moreno’s ease did not wane. He read about the charges against Moreno in newspapers and also read about the court-martial of Moreno’s co-accused, who was acquitted of wrongdoing for the same incident.5

We believe that an objective observer would perceive that LtCol F possessed an excessive level of pretrial knowledge about the incident to sit as an impartial panel member. His personal inquiry went beyond a routine passing of information to a superior. His inquiries were so thorough that he subjectively believed he knew all there was to know—that he had the “complete picture.”

Under these circumstances—where LtCol F had investigated the incident, weighed *135facts, made recommendations based on his conclusions and continued to follow both this case and the case of Moreno’s co-accused in the press—an objective observer could reasonably question whether LtCol F could come to any different conclusions based solely on evidence presented in court. An observer could also reasonably question whether LtCol F would contradict his initial conclusions and recommendations to the comptroller if warranted by the evidence.

An objective observer could harbor a reasonable concern that as president of the court-martial, LtCol F would exert influence over other court-martial members arising from his in-depth personal knowledge of the facts rather than from the evidence presented in court. We also believe that the objective observer would not accord much weight to LtCol F’s assertion that he could be impartial in view of the depth of his prior involvement. “[W]e do not accept as conclusive a challenged member’s perfunctory disclaimer of personal interest or his assertion of impartiality.” United States v. Smart, 21 M.J. 15, 19 (C.M.A.1985).

Thus, we hold that there is a substantial doubt that this trial was by a panel of members who were fair and impartial and the military judge therefore erred by denying the challenge for cause against LtCol F.

Speedy PosC-Trial and Appellate Review

Moreno contends that the 1,688 days that elapsed between the completion of his court-martial and the decision of the Court of Criminal Appeals was unreasonable and denied him due process. Moreno argues that he had legitimate claims of error in his case and that the delay has denied him the opportunity for meaningful relief. The Government counters that the time involved in Moreno’s post-trial processing and appeal was not unreasonable. Alternatively, the Government asserts that even if the delay is unreasonable, Moreno’s due process rights have not been violated. The Supreme Court has recognized “the procedures used in deciding appeals must comport with the demands of the Due Process and Equal Protection Clauses of the Constitution.” Evitts v. Lucey, 469 U.S. 387, 393, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985); see also Diaz v. Judge Advocate General of the Navy, 59 M.J. 34, 38 (C.A.A.F.2003). “[A]n appeal that is inordinately delayed is as much a ‘meaningless ritual,’ Douglas [v. California, 372 U.S. 353, 358, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963)], as an appeal that is adjudicated without the benefit of effective counsel or a transcript of the trial court proceedings.” Harris v. Champion (Harris II), 15 F.3d 1538, 1558 (10th Cir.1994).

This court has recognized that convicted servicemembers have a due process right to timely review and appeal of courts-martial convictions. Toohey, 60 M.J. at 101; Diaz, 59 M.J. at 37-38. We review de novo claims that an appellant has been denied the due process right to a speedy post-trial review and appeal. See United States v. Rodriguez, 60 M.J. 239, 246 (C.A.A.F.2004) (conclusions of law are reviewed under the de novo standard); United States v. Cooper, 58 M.J. 54, 58 (C.A.A.F.2003) (speedy trial issues, as conclusions of law, are reviewed de novo).

In conducting this review we have adopted the four factors set forth in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972):(1) the length of the delay; (2) the reasons for the delay; (3) the appellant’s assertion of the right to timely review and appeal; and (4) prejudice. United States v. Jones, 61 M.J. 80, 83 (C.A.A.F.2005); Toohey, 60 M.J. at 102. While Barker addressed speedy trial issues in a pretrial, Sixth Amendment context, its four-factor analysis has been broadly adopted for reviewing post-trial delay due process claims.6

*136Once this due process analysis is triggered by a facially unreasonable delay, the four factors are balanced, with no single factor being required to find that post-trial delay constitutes a due process violation. Barker, 407 U.S. at 533, 92 S.Ct. 2182 (“We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of [due process].”); Simmons v. Reynolds, 898 F.2d 865, 868 (2d Cir.1990) (“[N]o one factor is dispositive and all are to be considered together with the relevant circumstances.”).

We analyze each factor and make a determination as to whether that factor favors the Government or the appellant. See Rheuark v. Shaw, 628 F.2d 297, 303 (5th Cir.1980) (calling for an ad hoc evaluation of the four Barker factors). We then balance our analysis of the factors to determine whether there has been a due process violation. Barker, 407 U.S. at 533, 92 S.Ct. 2182 (“[C]ourts must still engage in a difficult and sensitive balancing process.”). No single factor is required for finding a due process violation and the absence of a given factor will not prevent such a finding. Id. With this structure as our guide, we turn to an analysis of the four factors as they arise in Moreno’s case.

1. Length of the delay

Initially, unless the delay is facially unreasonable, the full due process analysis will not be triggered. Toohey, 60 M.J. at 102. We conduct a case-by-case analysis to determine if a given delay is facially unreasonable.7 Id. at 103.8 In this case we conclude that the overall period of post-trial review and appeal, 1,688 days, is facially unreasonable and thus we will proceed to the remaining Barker factors.

2. Reasons for the delay

Under this factor we look at the Government’s responsibility for any delay, as well as any legitimate reasons for the delay, including those attributable to an appellant. In assessing the reasons for any particular delay, we examine each stage of the post-trial period because the reasons for the delay may be different at each stage and different parties are responsible for the timely completion of each segment.9

The 490 days between the end of trial and the convening authority’s action is excessive for the post-trial processing of this ease. The processing in this segment is completely within the control of the Government and no exceptional circumstances have been offered to explain this delay. See United States v. Bigelow, 57 M.J. 64, 68-69 (C.A.A.F.2002). It is striking that this period is over five times longer than that deemed reasonable by this court when we established the ninety-day rule in Dunlap v. Convening Authority, 23 C.M.A. 135, 48 C.M.R. 751 (1974).10 The seventy-six days between action and docketing the case before the Court *137of Criminal Appeals is also unexplained. Delays involving this essentially clerical task have been categorized as “the least defensible of all” post-trial delays. United States v. Dunbar, 31 M.J. 70, 73 (C.M.A.1990).

The longest delay in this case—925 days—involves the period from which the case was docketed at the Court of Criminal Appeals until briefing was complete. The Government claims that Moreno is directly responsible for the almost two years it took to file his brief at the Court of Criminal Appeals. The record reflects that appellate defense counsel sought and was granted eighteen enlargements of time within which to file a brief. Enlargement numbers four through eighteen each contained the same reason for the request: “other ease load commitments.”

While the Government argued that this period of delay was in Moreno’s interest, there was no evidence demonstrating that the enlargements were directly attributable to Moreno or that the need for additional time arose from other factors such as the complexity of Moreno’s case. The Government further argued that we should presume the delays were for Moreno’s benefit, but did not provide any legal authority to support such a presumption. There is no evidence in this case that the numerous requests for delay filed by appellate defense counsel benefited Moreno or that Moreno was consulted about and agreed to these delays. “Other case load commitments” logically reflects that Moreno’s case was not getting counsel’s professional attention, a fact that is the very antithesis of any benefit to Moreno. We therefore decline to hold Moreno accountable for this period of delay. As we said in Diaz, 59 M.J. at 38:

Appellate counsel caseloads are a result of management and administrative priorities and as such are subject to the administrative control of the Government. To allow caseloads to become a factor in determining whether appellate delay is excessive would allow administrative factors to trump the Article 66 and due process rights of appellants. To the contrary, the Government has a statutory responsibility to establish a system of appellate review under Article 66 that preserves rather than diminishes the rights of convicted servicemembers. In connection with that responsibility, the Government has a statutory duty under Article 70 to provide Petitioner with appellate defense counsel who is able to represent him in both a competent and timely manner before the Court of Criminal Appeals.

Internal footnote omitted. See also Barker, 407 U.S. at 531, 92 S.Ct. 2182 (noting that ultimate responsibility of delay caused by negligence or overcrowded courts rests with the Government).11

While appellate defense counsel’s caseload is the underlying cause of much of this period of delay, responsibility for this portion of the delay and the burden placed upon appellate defense counsel initially rests with the Government. The Government must provide adequate staffing within the Appellate Defense Division to fulfill its responsibility under the UCMJ to provide competent and timely representation. See Article 70, UCMJ, 10 U.S.C. § 870 (2000). Ultimately the timely management and disposition of cases docketed at the Courts of Criminal Appeals is a responsibility of the Courts of Criminal Appeals. Therefore, we decline to hold Moreno responsible for the lack of “institutional vigilance” which should have been exercised in this case. See Diaz, 59 M.J. at 39-40.

The final period of delay is the 197 days from submission of the final briefs to the Court of Criminal Appeals’ decision. We will apply a more flexible review of this period, recognizing that it involves the exercise of the Court of Criminal Appeals’ judicial decision-making authority.12 We find that a peri*138od of slightly over six months is not an unreasonable time for review by the Court of Criminal Appeals. Thus, under Barker’s second factor—reasons for the delay—the unreasonable delays in this case are either unexplained or the responsibility of the Government. There is no reason given for the unreasonable delays in getting this case from trial to the convening authority for action and in docketing the case before the Court of Criminal Appeals after action. The Government bears responsibility for unreasonable delay during appeal occasioned by the workload of appellate defense counsel. We conclude that this second Barker factor weighs heavily in favor of Moreno.

3. Assertion of the right to a timely review and appeal

This factor calls upon us to examine an aspect of Moreno’s role in this delay. Moreno did not object to any delay or assert his right to timely review and appeal prior to his arrival at this court. The Supreme Court in Barker, 407 U.S. at 531-32, 92 S.Ct. 2182, noted that where the defendant has asserted his speedy trial right, it is “entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right.” The Court rejected, however, “the rule that a defendant who fails to demand a speedy trial forever waives his rights.” Id. at 528, 92 S.Ct. 2182.

We do not believe this factor weighs heavily against Moreno under the circumstances of this case. The obligation to ensure a timely review and action by the convening authority rests upon the Government and Moreno is not required to complain in order to receive timely convening authority action. United States v. Bodkins, 60 M.J. 322, 323-24 (C.A.A.F.2004). Similarly, Moreno bears no responsibility for transmitting the record of trial to the Court of Criminal Appeals after action. Nor is it unreasonable to assume, as Moreno argues, that a convicted person wants anything other than a prompt resolution of his appeal. See Harris II, 15 F.3d at 1563.

We also recognize the paradox of requiring Moreno to complain about appellate delay either to his appellate counsel who sought multiple enlargements of time because of other case commitments or to the appellate court that granted the enlargements on a routine basis.13 While this factor weighs against Moreno, the weight against him is slight given that the primary responsibility for speedy processing rests with the Government and those to whom he could complain were the ones responsible for the delay.

4. Prejudice

In Barker, 407 U.S. at 532, 92 S.Ct. 2182, the Supreme Court recognized a framework to analyze the “prejudice” factor in a speedy trial context. We agree with the Fifth Circuit’s modification of that framework for analyzing prejudice in a due process post-trial delay analysis:

In the case of appellate delay, prejudice should be assessed in light of the interests of those convicted of crimes to an appeal of their convictions unencumbered by excessive delay. We identify three similar interests for prompt appeals: (1) prevention of oppressive incarceration pending appeal; (2) minimization of anxiety and concern of those convicted awaiting the outcome of their appeals; and (3) limitation of the possibility that a convicted person’s grounds for appeal, and his or her defenses *139in case of reversal and retrial, might be impaired.

Rheuark, 628 F.2d at 303 n. 8; see also United States v. Hawkins, 78 F.3d 348, 351 (8th Cir.1996); Coe v. Thurman, 922 F.2d 528, 532 (9th Cir.1990); Harris II, 15 F.3d at 1547.

a. Oppressive Incarceration Pending Appeal

This sub-factor is directly related to the success or failure of an appellant’s substantive appeal. If the substantive grounds for the appeal are not meritorious, an appellant is in no worse position due to the delay, even though it may have been excessive. Cody v. Henderson, 936 F.2d 715, 720 (2d Cir.1991). Under these circumstances, an appellant would have served the same period of incarceration regardless of the delay. United States v. Antoine, 906 F.2d 1379, 1382 (9th Cir.1990). However, if an appellant’s substantive appeal is meritorious and the appellant has been incarcerated during the appeal period, the incarceration may have been oppressive. Coe, 922 F.2d at 532.

Moreno served his full term of confinement before his appeal of right was resolved by the Court of Criminal Appeals. Before this court he has prevailed on a substantive appellate issue, his conviction will be set aside and he is entitled to a retrial. As the Fifth Circuit has noted:

Moreover, if an appeal is not frivolous, a person convicted of a crime may be receiving punishment the effects of which can never be completely reversed or hving under the opprobrium of guilt when he or she has not been properly proven guilty and may indeed be innocent under the law.

Rheuark, 628 F.2d at 304.14

Moreno was sentenced to six years of incarceration. Although the record does not provide us with a precise release date, we can be reasonably certain that Moreno was released from confinement prior to the Court of Criminal Appeals’ decision. Based on the 150 days of pretrial confinement credit and the duration of the adjudged confinement, we estimate that Moreno’s minimum release date was about April, 2003. Thus, he had served at least four years in confinement, under a conviction that has now been set aside, prior to his appeal of right being decided. We therefore find that he has suffered some degree of prejudice as the result of oppressive incarceration.15

b. Anxiety and Concern

This sub-factor involves constitutionally cognizable anxiety that arises from excessive delay. Federal courts have adopted different approaches to this “prejudice” sub-factor. The Second Circuit has affirmed district court decisions which found anxiety-based prejudice that arose solely from the length of the delay. Yourdon v. Kelly, 969 F.2d 1042 (2d Cir.1992)(table decision), aff'g 769 F.Supp. 112, 115 (W.D.N.Y.1991); Snyder v. Kelly, 972 F.2d 1328 (2d Cir.1992)(table decision), aff'g 769 F.Supp. 108, 111 (W.D.N.Y.1991).16

The Ninth Circuit requires a showing of “particular anxiety”, which must be distinguished from the normal anxiety experienced by any prisoner awaiting an appellate deei*140sion. Antoine, 906 F.2d at 1383; see also Coe, 922 F.2d at 532. The Third Circuit requires an appellant “to detail anxiety related to the processing of his case post-conviction.” Burkett v. Fulcomer, 951 F.2d 1431, 1447 (3d Cir.1991). The Tenth Circuit requires a “particularized and substantial showing of anxiety and concern, absent a delay so excessive as to trigger the Doggett presumption of prejudice.” Harris II, 15 F.3d at 1565.

While some circuits require that an appellant have a meritorious appeal to prevail on this sub-factor, see id., others have recognized anxiety arising from excessive delays regardless of whether the appellant prevails on a substantive issue.17 We believe that the appropriate test for the military justice system is to require an appellant to show particularized anxiety or concern that is distinguishable from the normal anxiety experienced by prisoners awaiting an appellate decision. This particularized anxiety or concern is thus related to the timeliness of the appeal, requires an appellant to demonstrate a nexus to the processing of his appellate review, and ultimately assists this court to “fashion relief in such a way as to compensate [an appellant] for the particular harm.” Burkett, 951 F.2d at 1447. We do not believe that the anxiety that an appellant may experience is dependent upon whether his substantive appeal is ultimately successful. An appellant may suffer constitutionally cognizable anxiety regardless of the outcome of his appeal.

Moreno argues that he suffered prejudice because he was required to register as a sex offender upon his release from incarceration without the opportunity of having his appeal of right heard and decided. See 42 U.S.C. § 14071(a)(1)(A), (b)(6)(A) (2000). Moreno essentially argues that had his appeal been processed in a timely manner, it would have been resolved before his release from incarceration. Had Moreno’s conviction been affirmed prior to his release, registration as a sex offender would have been a proper consequence of his conviction. However, Moreno argues that he has been “living under the opprobrium of guilt when he ... has not been properly proven guilty and may indeed be innocent under the law.” Rheuark, 628 F.2d at 304. The excessive delay in this case and our disposition of the implied bias issue lend credence to Moreno’s claim that he was prejudiced by the requirement to register as a sex offender. We find that this circumstance constitutes constitutional anxiety that is distinguishable from the normal anxiety experienced by prisoners awaiting appeal and that as a result Moreno has suffered some degree of prejudice.

c. Impairment of Ability to Present a Defense at a Rehearing

This final sub-factor is directly related to whether an appellant has been successful on a substantive issue of the appeal and whether a rehearing has been authorized. If an appellant does not have a meritorious appeal, there obviously will be no prejudice arising from a rehearing. If, however, a conviction has been set aside and a rehearing authorized, the appellate delay encountered by the appellant may have a negative impact on his ability to prepare and present his defense at the rehearing. Due to the passage of time, witnesses may be unavailable, memories may have faded and records of trial may have been misplaced or lost.

In order to prevail on this factor an appellant must be able to specifically identify how he would be prejudiced at rehearing due to the delay.18 Mere speculation is not *141enough. United States v. Mohawk, 20 F.3d 1480, 1487 (9th Cir.1994). Moreno claims that prejudice exists under this factor because of the potential harm he would suffer in the event he is successful on appeal and a rehearing is authorized. He does not, however, identify any specific harm that he would encounter at a rehearing and he has therefore failed to establish prejudice under this sub-factor.19

Conclusion—Barker Factors

Because of the unreasonably lengthy delay, the lack of any constitutionally justifiable reasons for the delay, and the prejudice suffered by Moreno as a result of oppressive incarceration and anxiety, our balancing of the four Barker factors leads us to conclude that Moreno was denied his due process right to speedy review and appeal. Because we have found legal error and substantial prejudice to a material right, as well as a deprivation of due process, we need to consider appropriate relief. See Jones, 61 M.J. at 86.

Before we turn to that consideration, we address post-trial processing standards in the military justice system. Our concern for post-trial timeliness has been heightened by the number of appellate delay cases that have come before this co