2023 (October Term)
United States v. Hasan, 84 M.J. 181 (an appellant can properly add material to the record about prison conditions in the course of filing a clemency petition with the convening authority).
(an appellate court will assume that an appellant's decision to proceed pro se during post-trial clemency proceedings was valid only if he knowingly, voluntarily, and intelligently waived the right to counsel).
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).
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).
(the CAAF cannot substitute
its judgment about
the merit of a request for clemency or the weight to be given any
specific
clemency recommendation by a convening authority).
(clemency is a highly
discretionary command
function of a convening authority).
(where a servicemember has been deprived of
full and fair clemency consideration by a convening authority, the CAAF
is not
reluctant to return a case for an otherwise proper review and action).
(appellant did not suffer any material
prejudice to a substantial right from the alleged failure of the SJA to
submit
clemency matters to the convening authority prior to his initial action
and
from the SJA’s subsequent failure to forward them to the convening
authority
for over a year, where there was a second action taken by the same
convening
authority after his consideration of appellant’s clemency submission
which
demonstrated clearly and convincingly that even if the clemency
materials had
been considered at the time of the initial action, appellant would not
have
been afforded clemency; under these circumstances, any possible error
relating
to the post-trial processing of clemency materials in this case was
harmless,
especially where the CCA reduced the period of confinement when it
granted
sentence relief to address post-trial delay).
(defense counsel should take
reasonable steps to guarantee that clemency submissions have in fact
been
received under any circumstances but particularly where communications
are
problematic; in addition, an SJA should be attentive to whether the
defense
intends to submit clemency matters and, where there are clear
indications that
the defense intends to submit matters, the SJA need not rush to action
in the
absence of the anticipated clemency material - particularly where
communications are problematic).
United
States v. Scott, 66 M.J. 1 (the
convening authority is presumed to know the difference between
clemency materials and evidence adduced at trial).
United
States v. Rosenthal, 62 M.J. 261 (the convening authority’s action
provides
the accused’s best hope for clemency).
1999
United
States v. Lee, 50 MJ 296 (even though appellant’s
offenses
predated the effective date of Article 58b, thus not being subject to
automatic
forfeiture, the convening authority still had the power to remit or
suspend any
or all of the adjudged forfeitures as a matter of clemency).
(convening authority remains the accused’s best hope for sentence
relief).