Appellant, charged with and originally convicted of one specification of sexual assault against Staff Sergeant (SSgt) FC, moved to dismiss the specification upon rehearing on the ground that the Government violated his right to a speedy trial under the Sixth Amendment. The military judge granted the motion and dismissed the case with prejudice, after which the Government appealed to the United States Air Force Court of Criminal Appeals (CCA), under Article 62, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 862 (2012). The CCA reversed and Appellant appeals. We hold that the military judge did not err in granting Appellant’s motion to dismiss and reverse.
The nub of the issue is the fourth Barker v. Wingo, 407 U.S. 514 (1972) factor, prejudice.
[The AFCCA] reasoned that Appellant was not prejudiced by the delay of the rehearing because he had “failed to demonstrate” that (1) “TSgt KW and LB lost their memories during the period of facially unreasonable delay” or that (2) “the lost memories of TSgt KW and LB have actually prejudiced his defense at trial, in light of the availability of their prior testimony and other testimony that remains available.” Additionally, the CCA stated that that lack of prejudice “outweigh[ed] the remaining [Barker] factors that, taken together, only moderately favor [Appellant].
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