TRIAL STAGES: Initial Review: Clemency

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 (Transition)

United States v. Travis, 66 M.J. 301 (a convicted servicemember has the right to submit matters to the convening authority that reasonably tend to affect the decision whether to approve or disapprove any findings of guilt or to approve, reduce, or disapprove the adjudged sentence; these matters may be submitted within ten days after the authenticated record of trial and SJA recommendation are served on the accused, and additional time may be requested for good cause shown; failure to submit matters within the time prescribed by this rule shall be deemed a waiver of the right to submit such matters; a convening authority must consider matters submitted by the accused). 


(the CAAF cannot substitute its judgment about the merit of a request for clemency or the weight to be given any specific clemency recommendation by a convening authority). 


(clemency is a highly discretionary command function of a convening authority). 

(where a servicemember has been deprived of full and fair clemency consideration by a convening authority, the CAAF is not reluctant to return a case for an otherwise proper review and action). 

(appellant did not suffer any material prejudice to a substantial right from the alleged failure of the SJA to submit clemency matters to the convening authority prior to his initial action and from the SJA’s subsequent failure to forward them to the convening authority for over a year, where there was a second action taken by the same convening authority after his consideration of appellant’s clemency submission which demonstrated clearly and convincingly that even if the clemency materials had been considered at the time of the initial action, appellant would not have been afforded clemency; under these circumstances, any possible error relating to the post-trial processing of clemency materials in this case was harmless, especially where the CCA reduced the period of confinement when it granted sentence relief to address post-trial delay). 

(defense counsel should take reasonable steps to guarantee that clemency submissions have in fact been received under any circumstances but particularly where communications are problematic; in addition, an SJA should be attentive to whether the defense intends to submit clemency matters and, where there are clear indications that the defense intends to submit matters, the SJA need not rush to action in the absence of the anticipated clemency material - particularly where communications are problematic).    


United States v. Scott, 66 M.J. 1 (the convening authority is presumed to know the difference between clemency materials and evidence adduced at trial). 



United States v. Rosenthal, 62 M.J. 261 (the convening authority’s action provides the accused’s best hope for clemency). 



United States v. Lee, 50 MJ 296 (even though appellant’s offenses predated the effective date of Article 58b, thus not being subject to automatic forfeiture, the convening authority still had the power to remit or suspend any or all of the adjudged forfeitures as a matter of clemency).

(convening authority remains the accused’s best hope for sentence relief).

United States v. Brownfield, 52 MJ 40 (reliance upon an SJA’s opinion that clemency is unlikely, or relying on the accused’s exercise of the right to plead not guilty, are never sufficient reasons to forego clemency submissions).

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