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).
2003
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).
2002
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).
2000
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).
1999