MILITARY JUSTICE PERSONNEL: Convening Authority: Generally

2013 (September Term)

United States v. Davenport, 73 M.J. 373 (when a verbatim transcript cannot be prepared, the plain language of RCM 1103(f) provides that there are only two remedial options available to the convening authority; under that rule, the convening authority may (1) approve only so much of the sentence that could be adjudged by a special court-martial, except that a bad-conduct discharge, confinement for more than six months, or forfeiture of two-thirds pay per month for more than six months, may not be approved, or (2) direct a rehearing as to any offense of which the accused was found guilty if the finding is supported by the summary of the evidence contained in the record, provided that the convening authority may not approve any sentence imposed at such a rehearing more severe than or in excess of that adjudged by the earlier court-martial).

2010 (September Term)


United States v. Lofton, 69 M.J. 386 (the convening authority may direct a post-trial hearing at any time before taking initial action). 


(a convening authority is not compelled to grant a post-trial hearing based merely on unsworn, unsubstantiated assertions). 

United States v. Gooch, 69 M.J. 353 (from among officers eligible to serve on a court-martial panel, the convening authority shall detail as members thereof such members as, in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament). 

(although the convening authority must personally select the court-martial members, he or she may rely on staff and subordinate commanders to compile a list of eligible members). 

 

(however well-intentioned, the convening authority’s staff cannot exclude an entire class of eligible members based on mere possibilities; however, the staff need not include all eligible members or those with obvious conflicts).

2009 (September Term)


United States v. Nerad, 69 M.J. 138 (while the CCA clearly has the authority to disapprove part or all of the sentence and findings, nothing suggests that Congress intended to provide the CCAs with unfettered discretion to do so for any reason, for no reason, or on equitable grounds, which is a function of the command prerogative of the convening authority).

 

(granting mercy for any reason or no reason is within the purview of the convening authority).

 

(decisions not to prosecute or to grant requests for clemency are matters of command prerogative, and, as such, are for the convening authority, not the CCA). 


2008 (September Term)


United States v. Smead, 68 M.J. 44 (an agreement in a PTA for a convening authority to withdraw and dismiss certain charges with prejudice upon announcement of sentence is not a legal nullity; the power of a convening authority to dismiss withdrawn charges with prejudice is consistent with the powers granted to convening authorities by Congress and the President in the final disposition of charges; for example, a convening authority may: (1) direct action resulting in a finding of not guilty by entering into a PTA providing that the prosecution will present no evidence on a charge under RCM 705(b)(2)(D); (2) grant transactional immunity under RCM 704 that precludes trial by court-martial of an immunized offense; and (3) disapprove any finding by a court-martial and substitute either a lesser included offense or a finding of not guilty under Article 60(c)(3), UCMJ). 

 

(RCM 705(d)(4)(B) permits a convening authority to withdraw from a PTA if findings are set aside because a plea of guilty entered pursuant to the agreement is held improvident on appellate review; the rule establishes a two-part test in which the decision of the appellate court must: (1) set aside findings; and (2) do so because the plea was improvident). 

 

(at a rehearing on findings and sentence, convening authority could not revive charges that had been dismissed with prejudice upon announcement of sentence at appellant’s first court-martial pursuant to a PTA; the remand for a rehearing did not return the parties to status quo ante, but was instead based on the government’s failure to comply with a PTA term involving the effective date of the reduction in rank).  


United States v. Wiechmann, 67 M.J. 456 (although the accused does not have the right to detailed counsel of choice, once counsel has been detailed under Article 27(a) and an attorney-client relationship has been established, the convening authority may not undermine that relationship; the responsibility for any changes in the assignment of detailed counsel is vested in the authority competent to detail such counsel under departmental regulations, not the convening authority, and may be exercised only for good cause shown on the record or under the other limited circumstances provided in RCM 505(d)(2)(B)). 

 

(because a military judge is not appointed to conduct proceedings until charges are referred to a court-martial, the military justice system does not have standing courts at the trial level to address legal issues at the pre-referral stage; the convening authority exercises responsibility for pretrial matters that would otherwise be litigated before a judge in civilian proceedings, including issues involving the conduct of depositions, issuance of protective orders, availability of government-funded experts, mental responsibility proceedings, and questions concerning the validity of charges). 

 

(pretrial agreements implicate distinctive responsibilities of the convening authority with respect to court-martial proceedings; in the military justice system, responsibility for the function of determining sentencing is shared by the court-martial and the convening authority; as an incident of the responsibility for sentencing, the convening authority may enter into a pretrial agreement that imposes a legal limitation on the scope of the sentence). 

 

(a convening authority may not interfere with or impede an attorney-client relationship established between an accused and detailed defense counsel). 

 

(a the convening authority exercises significant pretrial responsibilities in the military’s criminal justice system; the responsibility for detailing defense counsel, however, is not one of the duties assigned to the convening authority by law; although the UCMJ, as originally enacted, authorized the convening authority to detail counsel, Congress amended the statute in 1983 to provide that the responsibility for detailing counsel would be exercised by persons authorized to do so under departmental regulations; the regulations at issue in the present case vested the responsibility for detailing counsel in various department-level officers, not in the convening authority).  

 

(the convening authority erred by declining to recognize appellant’s detailed defense counsel and restricting his role during the pretrial proceedings, including the proceedings concerning the Article 32 investigation and pretrial agreement negotiations; in so doing, the convening authority improperly interfered with the attorney-client relationship established at the time of his counsel’s initial detail, and these actions violated appellant’s rights under Article 27, UCMJ). 

 

(the convening authority’s action in declining to recognize appellant’s detailed counsel during the pretrial proceedings and initial pretrial agreements negotiations burdened counsel’s representation of appellant in several respects:  (1) the Article 32 proceeding was conducted without a full opportunity for counsel to prepare and participate; (2) counsel was excluded from pretrial disposition negotiations that the government conducted with a second, but less experienced defense counsel; (3) counsel was unable to represent appellant in pretrial procedural matters, such as in a scheduling conference or by requesting a continuance; under these circumstances, the government’s actions infringed appellant’s right to the assistance of counsel under Article 27 during pretrial proceedings before both the convening authority and the military judge). 

 

(the convening authority’s error in declining to recognize appellant’s detailed defense counsel and restricting his role during the pretrial proceedings did not amount to structural error, where appellant had the services of a second, recognized, and qualified detailed counsel throughout the proceedings, where appellant had the benefit of his previously unrecognized counsel’s unrestricted assistance during subsequent pretrial agreement negotiations, completion of the agreement, entry of pleas, and other trial and post-trial proceedings, and where appellant’s plea agreement, completed with the assistance of that counsel, expressly waived any defects in the Article 32 proceeding). 

 
2008 (Transition)
 

United States v. Adams, 66 M.J. 255 (administrative errors in the drafting of a convening order are not necessarily fatal to jurisdiction, and may be tested for prejudice under Article 59(a), UCMJ).

 
(the convening authority’s failure to transfer members named in previous special convening orders to the final special order convening appellant’s court-martial was administrative error, rather than jurisdictional error, that did not materially prejudice the substantial rights of appellant, where none of the members who participated in the court-martial was an interloper, where each member was selected by the convening authority to consider the charges against appellant, where there was no evidence that the convening authority excused any of the members who sat on appellant’s court-martial, where there was also no evidence that the convening authority withdrew the charges in order to refer them to a new court-martial, and more important, where the record reflects that the members named in final special order were selected to bring the court-martial up to quorum and were not selected to serve as a separately constituted court-martial). 

 

2007


United States v. Canchola, 64 M.J. 245 (where operational requirements affect post-trial processing delays, staff judge advocates and convening authorities should ensure that those reasons are documented in the record of trial).


2006


United States v. Harvey, 64 M.J. 13 (there is no rule that the convening authority cannot attend a court-martial; but the presence of the convening authority at a court-martial may raise issues). 

 

United States v. Harvey, 64 M.J. 13 (before attending a court-martial, a convening authority should give prudent and careful consideration as to the impact one’s presence could have on both the proceedings and the perception of fairness of the court-martial; a convening authority is encouraged to initiate a dialogue with both the command staff judge advocate and the trial counsel before entering a courtroom; discussing this matter with these lawyers would permit them to advise the convening authority of both general and case specific issues that may be raised by the convening authority’s presence at the court-martial; it would also afford the trial counsel the opportunity to advise both the military judge and the trial defense counsel of the presence of the convening authority in advance, so that the matter can be discussed with the military judge and any issues litigated before the convening authority is present in court before the panel members).


2004

 

United States v. Dowty, 60 MJ 163 (actual appointment of fair and impartial members is the duty and responsibility of the convening authority; a convening authority’s power to appoint a court-martial is one accompanying the position of command and may not be delegated; it is blackletter law that the convening authority must personally select the court-martial members).

 

(the convening authority, while charged with the personal responsibility for the selection of court members, must have assistance in the preparation of a panel from which to choose those members; in order to carry out his function under Article 25, he must necessarily rely on his staff or subordinate commanders for the compilation of some eligible names).

 

(the military judge’s finding of fact that the convening authority personally selected the court-martial panel was not clearly erroneous where the convening authority stated that he selected the panel members based on the member questionnaires, did not review the list of nominations submitted by his staff until after he had selected the panel, and personally signed the selection sheet and convening order modification).


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