United States v. Dinkins

23 C.M.A. 582, 1 M.J. 185, 50 C.M.R. 847, 23 USCMA 582, 1975 CMA LEXIS 642

Opinions

OPINION OF THE COURT

Per Curiam:

The Government points to several "unusual factors” to justify the 126-day Burton¹ delay in bringing appellant to trial.² See United States v Marshall, 22 USCMA 431, 47 CMR 409 (1973). The crucial delay triggering the Burton presumption was a Government witness’ failure to secure in advance of the scheduled trial date a passport to return to Germany to testify. Assuring the presence of witnesses for trial is one of the routine responsibilities of the prosecution for which ample allowance was made in establishing the 90-day standard. United States v Reitz, 22 USCMA 584, 48 CMR 178 (1974). The Court of Military Review erred in affirming the findings and sentence.

The decision of the United States Army Court of Military Review is reversed. The charge and its specification are ordered dismissed.

Footnotes

1

United States v Burton, 21 USCMA 112, 44 CMR 166 (1971).

2

Both parties acknowledge that the defense must share responsibility for a portion of the delay in bringing appellant to trial, but that the Government remains accountable for a period in excess of 90 days.