2010 (September Term)
United States v. Hull, 70 M.J. 145 (a convening authority is authorized to modify the findings and sentence of a court-martial as a matter of command prerogative involving the sole discretion of the convening authority; when taking action on the results of trial, the convening authority may order a rehearing as to some or all offenses of which findings of guilty were entered and the sentence, or as to sentence only).
(in practical terms, a rehearing in full ordered by a convening authority under Article 60 involves the same trial-stage procedures as a new trial ordered by the Judge Advocate General or appellate courts under Article 73, UCMJ; the convening authority’s power to order a rehearing under Article 60, however, differs in a number of significant respects from the authority to order a new trial under Article 73 by the Judge Advocate General and appellate courts; a petition under Article 73 may be submitted at any time within two years after approval by the convening authority of a court-martial sentence on the grounds of newly discovered evidence or fraud on the court, and is subject to the standards and criteria set forth in RCM 1210; by contrast, the convening authority, who may order a full or partial rehearing when taking post-trial action on the case as a matter of command prerogative, is not limited by the standards and criteria of Article 73 and RCM 1210).
(in view of the potential impact of newly discovered evidence on appellate consideration of a case, the SJA or the convening authority may find it useful to apply Article 73 and RCM 1210 criteria as a means of addressing such information early in the post-trial process; the convening authority, however, is not obligated to apply those criteria in exercising command prerogative powers under Article 60).
(in the course of considering action under Article 60 in the face of newly discovered evidence, the convening authority has options other than considering a rehearing on the findings and sentence; the convening authority also has the power to address post-trial developments by returning the record for a limited post-trial hearing before the military judge under Article 39(a)).
(requests for a new trial, and thus rehearings and reopenings of trial proceedings, are generally disfavored, and are granted only if a manifest injustice would result absent a new trial, rehearing, or reopening based on proffered newly discovered evidence).
(when advising the convening authority on a defense post-trial request for a rehearing based on newly discovered evidence that a witness had been told by the alleged rape victim that her encounter with appellant had been consensual, the SJA was not obligated to inform the convening authority about the possibility of ordering a post-trial Article 39(a) session for the purpose of compelling that witness or any other to appear and give sworn testimony, where there was an absence of a defense request for such a post-trial Article 39(a) session, and in light of the vague nature of the unsworn information provided by the defense).
United
States v. Lofton, 69 M.J. 386 (post-trial
hearings may be convened, for,
among other things, the purpose of inquiring into, and, when
appropriate,
resolving any matter that arises after trial and that substantially
affects the
legal sufficiency of any findings of guilty or the sentence; the
military judge
may direct a post-trial session at any time before authenticating the
record,
and 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).
(where the basis of the
defense’s claim for a
post-trial session was an unsworn e-mail from a government employee
concerning
a witness sequestration matter, not from one of the parties or a
disgruntled
witness, and it was part of an official communication describing the
court-martial
to other members of the government’s sexual assault prevention and
response
program, the defense claim was not unsubstantiated, and the convening
authority
abused his discretion in not ordering a post-trial hearing to determine
whether
there was reason to inquire into the e-mail’s allegations and their
effect, if
any, on appellant’s court-martial).
2008 (Transition)
United
States v. Webb, 66 M.J. 89 (Article 39(a),
UCMJ, authorizes military
judges to take such action after trial and before authenticating the
record as
may be required in the interest of justice; before authentication of
the record,
the military judge has the authority to conduct a post-trial session,
set aside
findings of guilty and the sentence, and order a new trial for a
discovery
violation).
(a military judge does not
have authority under
Article 73, UCMJ, to order a new trial).
(prior to authentication, a
military judge has
authority under Article 39(a), UCMJ, and RCM 1102(b)(2) to convene a
post-trial
session to consider newly discovered evidence and to take whatever
remedial
action is appropriate).
2005
United
States v. Meghdadi, 60 M.J. 438 (if evidence is discovered after
trial
which would constitute grounds for a new trial under RCM 1210(f),
this might be considered a matter which arises after trial and
which substantially
affects the legal sufficiency of any findings of guilty or the sentence
within
the meaning of RCM 1102(b)(2); however, even if the drafters of the
Manual did
not intend such an interpretation of this Rule, we still are persuaded
that
Article 39(a) of the Code empowers the military judge to convene a
post-trial
session to consider newly discovered evidence and to take whatever
remedial
action is appropriate).
(although
we
have not directly addressed the standard to be applied in examining a
military
judge’s denial of a request for a post-trial Article 39(a) session, we
have
held that when an appellant requests the convening authority to order a
post-trial Article 39(a) session, it is a matter for the convening
authority’s
sound discretion whether to grant the request, and that we review a
military
judge’s ruling on a petition for a new trial for abuse of that
discretion).
(in
denying a
petition for a new trial, a military judge abuses his discretion if the
findings of fact upon which he predicates his ruling are not supported
by
evidence of record; if incorrect legal principles were used by him in
deciding
this motion; or if his application of the correct legal principles to
the facts
of a particular case is clearly unreasonable; while this standard is
not
facially applicable to the military judge’s denial of appellant’s
request for
an Article 39(a) session, the fact that the request was made in the
context of
a motion for new trial compels our consideration of this analytical
framework
in assessing the military judge’s factual and legal conclusions).
2004
United
States v. Fagan, 59 MJ 238 (this Court long ago
recognized
that resolution of collateral post-trial claims requires a procedure by
which
the Courts of Criminal Appeals, as well as this Court, may expand the
record of
trial where appropriate through an evidentiary hearing; the origin of
that
process is found in DuBay, where we remanded that case for a
fact-finding hearing on post-trial claims of unlawful command
influence; the
so-called "DuBay hearing" has since become a well-accepted
procedural tool for addressing a wide range of post-trial collateral
issues).
(our
decision in
Ginn simply addresses the threshold aspect of the DuBay
process;
specifically, it focuses on the circumstances under which a DuBay
hearing is required to resolve a post-trial claim that is framed by
conflicting
affidavits; we recognized in Ginn that Article 66(c) does not
authorize
a Court of Criminal Appeals to decide disputed questions of material
fact
pertaining to a post-trial claim, solely or in part on the basis of
conflicting
affidavits submitted by the parties; we also recognized, however, that
a
post-trial evidentiary hearing is not required in every case simply
because an
affidavit is submitted by an appellant; in the context in which Ginn
was
presented, we outlined six principles for determining when a
factfinding DuBay
hearing is required).
(Ginn’s
principles are applicable to a broad range of affidavit-based,
post-trial
collateral claims).
(there
are no
problems presented by the Ginn framework that are compounded by
our
decision in Grostefon; our decision in Grostefon simply
prescribed a rule of practice which requires, at a minimum, that when
an
accused specifies any error in his request for appellate representation
or in
some other form, the appellate defense counsel will invite the
attention of the
Court of Criminal Appeals to those issues; that court will review those
issues
and specifically acknowledge that it has considered and disposed of
them; the
linchpin of the Ginn framework is the recognition that a Court
of
Criminal Appeals' factfinding authority under Article 66(c) does not
extend to
deciding disputed questions of fact pertaining to a post-trial claim,
solely or
in part on the basis of conflicting affidavits submitted by the
parties; there
is nothing inherent in the Grostefon procedure that amplifies,
restricts
or even impacts upon Article 66(c) authority in the context of
affidavit-based
post-trial claims, which is the context in which Ginn arises;
the fact
that these claims may be assigned as error by counsel or raised by an
appellant
under Grostefon has no impact on the Ginn analysis).
2002
United
States v. Sills, 56 MJ 239 (the intermediate
appellate
courts are authorized to order sentence-only rehearings; Jackson v.
Taylor,
353 U.S. 569 (1957), is not to the contrary. See United
States v.
Miller, 10 USCMA 296, 27 CMR 370 (1959)).
2001
United
States v. Kulathungam, 54 MJ 386 (where there was no
doubt
among any of the parties at trial that appellant had committed the
charged
offenses and had pled guilty in order to benefit from a pretrial
agreement
which again listed each of the offenses to which he was pleading
guilty, the
military judge could direct a post-trial session to correct his failure
to
announce findings based upon appellant’s guilty pleas).
1999