TRIAL STAGES: Initial Review: Post-trial Submissions

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).

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).  


United States v. Rosenthal, 62 M.J. 261 (before a convening authority acts on the results of trial, an accused has the opportunity to submit to the convening authority any matters that may reasonably tend to affect the convening authority’s decision whether to disapprove any findings of guilty or to approve the sentence).


(under RCM 1105(d)(1), failure to submit post-trial matters within the time prescribed by the rule shall be deemed a waiver of the right to submit such matters; under RCM 1105(d)(3), the accused may expressly waive, in writing, the right to submit matters under this rule; once filed, such waiver may not be revoked; a waiver under RCM 1105(d) must be knowing and intelligent). 


(when a case is remanded for a new convening authority’s action, the convening authority is not limited to considering the circumstances as they existed at the time of the initial review; the convening authority may consider other appropriate matters -- including changes in circumstances following the initial action on the case -- for purposes of determining whether clemency or other post-trial action is warranted; a servicemember has the corresponding right to bring matters in mitigation which were not available for consideration at the court-martial to the attention of the convening authority). 


(a decision by an appellate court to set aside the convening authority’s action on the results of trial is a significant development because it entitles an appellant to a new post-trial proceeding; counsel for an appellant should ascertain the client’s views before deciding how to address the opportunities presented by the new proceeding; counsel cannot assume that a client, who previously declined to seek clemency in the immediate aftermath of a trial, will necessarily have the same view when an appellate court orders a new recommendation and action -- particularly when the opportunity to make a new submission arises more than two years later).


(in this case, where the court of criminal appeals remanded the case for a new convening authority’s action, the defense counsel erred by relying on instructions provided by appellant two years earlier in the immediate aftermath of trial not to provide any post-trial submission on his behalf without first ensuring that appellant had made a knowing and intelligent waiver of his right to make a submission during the second post-trial review process).



United States v. Lowe, 58 MJ 261 (the text of RCM 1106(f)(1) is plain; the intent is clear; the staff judge advocate’s recommendation is required to be served on trial defense counsel before the convening authority takes action; this affords the accused an opportunity to communicate with the convening authority on the question of clemency and other post-trial matters at the same time the Government is heard; in this manner, the convening authority has the benefit of information received through the adversarial process before he or she acts).

(Article 60, UCMJ, provides the accused the right to submit matters for the convening authority’s consideration within 10 days after the accused has been given an authenticated record of trial and, if applicable, the recommendation of the staff judge advocate; thus the fact that appellant may have had time prior to service of the recommendation to submit matters is of little moment as long as the statute provided him a period of time, as a matter of right, to submit matters related to clemency after the recommendation was served upon him).

(while a convening authority has broad discretion whether or not to grant clemency, R.C.M. 1106(f) gives the accused a right to be served with the SJAR in a timely manner; CAAF is not persuaded that so long as an accused could have been heard before or after the convening authority acted, he waives objection to a violation of R.C.M. 1106(f); the opportunity to be heard before or after the convening authority considers his action on the case is simply not qualitatively the same as being heard at the time a convening authority takes action, anymore than the right to seek reconsideration of an appellate opinion is qualitatively the same as being heard on the initial appeal).

(the essence of post-trial practice is basic fair play -- notice and an opportunity to respond; where the Government has not complied with R.C.M. 1106(f), the outcome in such a case hinges on whether appellant has made a colorable showing of possible prejudice).

(in cases involving the failure to serve the SJAR on defense counsel, if an appellant makes some colorable showing of possible prejudice, CAAF will give that appellant the benefit of the doubt and will not speculate on what the convening authority might have done if defense counsel had been given an opportunity to comment).

(by definition, assessments of prejudice during the clemency process are inherently speculative; prejudice, in a case involving clemency, can only address possibilities in the context of an inherently discretionary act; therefore, the question for CAAF and the CCAs is not whether we, individually or collectively, would have granted clemency to Appellant, but whether Appellant had a fair opportunity to be heard on clemency before the convening authority, vested with discretion, acted in his case; where an Appellant makes a colorable showing that he was denied the opportunity to put before the convening authority matters that could have altered the outcome, CAAF and the CCAs will not speculate as to what the convening authority would have done).


United States v. Stephens, 56 MJ 391 (speculation concerning the consideration of post-trial matters simply cannot be tolerated in this important area of command prerogative; court will not guess as to whether clemency matters prepared by the defense counsel were attached to the recommendation or otherwise considered by the convening authority).

United States v. Hutchinson, 57 MJ 231 (the accused may submit for the convening authority’s consideration anything that may reasonably tend to affect the convening authority's decision whether to approve the sentence, including matters in mitigation which were not available for consideration at the court-martial or matters that could have been raised by the accused at trial but which the accused chose not to raise).


United States v. Knight, 53 MJ 340 (in cases where a servicemember is effectively without representation during the clemency process, the court will presume prejudice).


generally United States v. Stuart, 50 MJ 72.

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