TRIAL STAGES: Initial Review: Generally

2021 (October Term)

United States v. Miller, 82 M.J. 204 (under the procedural rules prior to January 1, 2019, the convening authority’s action was the final stage before the record was forwarded to the appellate court; in general, RCM 1104(b)(1)(A) (2016 ed) required the government to cause a copy of the record of trial to be served on the accused as soon as the record of trial was authenticated; the accused, then, had a minimum of ten days for submission of clemency matters; only then could the convening authority take action).

(the President made substantial changes to post-trial processing with the 2019 RCM; under the new procedural rules, an accused’s time line for submitting clemency matters begins when the sentence is announced, not when the record of trial is served on him or her, as the accused now has ten days from the announcement of sentence to submit matters for convening authority review; in addition, the record of trial is no longer a trigger for the time line to submit post-trial matters by the accused; instead, the only restrictions to the timing of the convening authority’s action, under the new rules, is that the convening authority consult with the staff judge advocate and consider any timely RCM 1106 clemency matters; any action by the convening authority must occur before entry of judgment by the military judge, and entry of judgment must occur before the court reporter certifies the record of trial; the convening authority’s decision on action can occur before the record of trial is complete).

(in this case, because the convening authority was not required to consider a complete record of trial prior to taking action, the nonexistence of a military judge's post-trial ruling at the time the convening authority acted is analyzed as a post-trial processing error rather than as a substantial omission from the record).

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. Medina, 66 M.J. 21 (any reviewing authority with the power to approve or affirm a finding of guilty may approve or affirm, instead, so much of the finding as includes a lesser included offense). 




United States v. Taylor, 60 MJ 190 (post-trial review is an important stage in the court-martial process; this stage culminates in the convening authority’s highly discretionary decision to approve, reduce, or set aside the court-martial’s findings and sentence; when making that decision, the convening authority will consider not only any submissions by the defense, but also a recommendation prepared by a staff judge advocate or legal officer). 


(it is important to ensure that the convening authorities and legal advisors who carry out the post-trial review be, and appear to be, objective; maintaining these individuals’ neutrality protects two important interests:  (1) the accused’s right to a fair post-trial review; and (2) the system’s integrity; concern for both fairness and integrity suggests that these neutral roles cannot be filled by someone who has publicly expressed a view prejudging the post-trial review process’s outcome). 


(where an article written by the trial counsel in the base newspaper expressed a negative view of the accused and his rehabilitative potential, the convening authority was not disqualified from participating in the accused’s post-trial review because the record established that the article could not be imputed to him; although the defense counsel argued that because the convening authority was the first person listed in the newspaper’s masthead, he must have known of and approved of the article before it was published, the convening authority swore in an uncontradicted affidavit that before the defense counsel’s submission, he was unaware of the article’s existence and played no role its preparation or publication). 


(where the staff judge advocate conceded that an article written by the trial counsel in the base newspaper expressing a negative view of the accused and his rehabilitative potential could be imputed to him, he could not perform the duties entrusted to a neutral staff judge advocate; by agreeing that such an article could be imputed to him, the staff judge advocate created the impression that he had prejudged the appropriateness of clemency in this case; a reasonable observer would no longer feel confident that the staff judge advocate remained neutral when he advised the convening authority concerning appellant’s clemency request). 


(a military accused’s best hope for sentence relief from a court-martial judgment comes in the convening authority’s action, and the staff judge advocate’s recommendation to the convening authority plays a pivotal role in an accused’s chances for relief; as a consequence, a disqualified staff judge advocate’s participation in the post-trial review process is a serious deficiency that cannot be said to be a technical matter without impact on the outcome of the proceedings).


(where a defense counsel’s post-trial submission includes allegations of legal error, the staff judge advocate’s advice to the convening authority is particularly important; in this case, where the defense counsel submitted allegations of legal error and the staff judge advocate’s advice was given by one who should have been disqualified from acting, the lack of advice from a properly-qualified staff judge advocate constituted a colorable showing of prejudice, warranting a new post-trial review and action).


United States v. Lee
, 50 MJ 296 (errors in post-trial processing create records that are not ready for appellate review and, when called to the attention of the Court of Criminal Appeals, preferably should be returned to the convening authority because it is that official’s duty to consider what action is appropriate under the circumstances; otherwise, immediate corrective action should be taken at the Court of Criminal Appeals).

United States v. Schrode, 50 MJ 459 (the objective of post-trial procedure is to ensure that the convening authority has all relevant information related to the accused and the charges prior to when he takes his action; post-trial procedure includes:  (1) an optional submission by the accused, RCM 1105; (2) a recommendation by the SJA, when required, RCM 1106; and (3) an optional response to the SJA’s recommendation, RCM 1106(f)(4)).

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