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).
2004
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).
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)).