Download - POST-TRIAL REVIEW & APPELLATE PROCEDURES
POST-TRIAL REVIEW
&
APPELLATE PROCEDURES
Learning Objectives
Understand the basic Post-Trial Review procedures:RCM 1105 mattersSJA’s recommendation under RCM 1106
Understand the meaning and effect of the Convening Authority’s Action
Describe the basic Appellate scheme including mandatory Appeals
Progression of Post-Trial Events
Last Day of Trial Results of Trial Transcription of the Record Authentication of Record Service of Record Submission of 1105 Clemency SJAR Service of SJAR Submission of 1106 Matters SJAR Addendum Convening Authority Action Service of Convening Authority Action Mailing of Complete Record of Trial to Navy and Marine Corps
Appellate Relief Activity (OJAG)
PRELIMINARY STEPS
•Results of Trial: RCM 1101(a)TC prepares following trialEvidence of trial and outcome before Record of Trial ProducedUsed by PSD to execute FF, R-in-R, & Automatic FF on DAY 15Used by Brig to determine release dateSample in Post Trial Matters at page 2
PRELIMINARY STEPS RECORD OF TRIAL (ROT)
GCM & SPCM W/Punitive discharge or >6mos conf/FOP
• Verbatim Record….months!!!
GCM & SPCM without Punitive discharge or <6mos conf/FOP
• Summarized Record . . . Quicker, but still months
• TC Responsible for preparation
Normally authenticated by MJ
Served on DC or Accused (Accused elects in Appellate Rights Statement)
PRELIMINARY STEPS
Prior to taking action, CA must give defense an opportunity to submit “matters” for consideration
Any matter which may reasonably tend to affect the CA’s decision to approve, disapprove, change findings or sentence
R.C.M. 1105
R.C.M. 1105 MATTERS Clemency RecommendationsMilitary Judge, Members, Chain of
Command
E & M StuffBoth new and old, CA has no obligation
to read ROT
Allegations of legal errorIf not raised, issue NOT WAIVED
1105 TIME PERIODS GCM & SPCM W/BCD OR W/1YR CONF10 days from receipt of ROTPlus, a second 10 Day period following receipt of SJAR
SPCM W/O BCD OR 1 YR CONF10 days from receipt of ROT
Upon timely request, the CA MAY grant an additional 20 DaysSJA/LO may approveOnly CA may disapprove
FORMAT FOR 1105 SUBMISSIONS
Generally done with a memo from DC to CA, with supporting enclosures
Use Standard Navy Correspondence Format
What clemency requested? Why should CA do it? How is justice best served by granting requested clemency?
SJA/LEGAL OFFICER RECOMMENDATION
Required in GCM, BCD SPCM, OR SPCM w/1yr confinement
Purpose - To assist the CA in taking action on the court-martial
SJA/LO: Commissioned Officer!!Command without SJA, may use a
“loaner” judge advocate
SJAR / LOR: MUST INCLUDE
Findings/SentenceSummary of SRBPTR (if any)Effects of PTA (if any)Specific RecommendationAddress legal error raisedClemency recommendation by MJ (if any)
RCM 1106
PRIOR TO FORWARDING SJAR/LOR TO CA
Serve SJAR/LOR on DC & AccusedAccused may elect to have copy served on DC, but DC ENTITLED TO OWN
COPY!
DC has 10 days to respond:This is second window to submit clemency mattersShould also comment upon any errors in the SJAR WAIVER
APPLIES!!! Failure to respond in time = WAIVER
SUPPLEMENTAL SJAR/LOR
SJA/LO may issue a Supplemental Recommendation based on DC’s response
SJA must serve Supplemental SJAR on DC if it contains “New Matter”
SJAR/LOR COMMON ERRORS
Charges, pleas, findings, sentence, or PTA impact incorrectly stated
Failure to note MJ or members clemency recommendation
Inaccurate summary of service record Failure to make specific recommendations No proof of service on accused & counsel Additional matters to CA without chance for
member to respond
CONVENING AUTHORITY ACTION
CA’s function - non-delegableDrafted by SJA/LO, but personal decision of
CAOften SJAR will include CA’s action for
CA’s signature that is consistent with SJA recommendation
Case may be forwarded to GCMCA for “Substitute” CA Action
CA’S ACTION Action on findings Not required!!CA can approve, approve a
lesser included offense, or disapprove each finding
CA’S ACTION Action on sentence This required for each part of the
sentence
On each piece of adjudged punishment CA must either:ApproveApprove and suspendDisapprove Mitigate or commute
CA SHALL CONSIDER:
Results of TrialRecommendation of SJA/LO 1105 and 1106 matters
Record of Trial Accused's SRB Other matters CA MUST notify accused of adverse matters and afford opportunity to rebut
CA MAY CONSIDER
EXECUTION OF SENTENCE
Once approved, CA’s Action also “executes” unsuspended punishmentExcept discharge, dismissal and death
Execution = Order to carry out sentence However many punishments already in
effectConfinement: Day of TrialFF and RinR: Day 15
CONTENT OF CA’S ACTION
Review Example at page 35 of POST TRIAL GUIDE
Examples of all possible actions taken in Appendix 16, MCM
SUSPENDED CONFINEMENT In the case of ___, the sentenced is
approved and will be executed, but the execution of that part of the sentence extending to confinement in excess of 1 year is suspended for 1 year, at which time, unless sooner vacated, the suspended part of the sentence will be remitted without further action. Naval Brig Rota is designated as place of confinement.
PROMULGATING ORDER Publish the results of trial and CAA Issued in EVERY SPCM/GCM case SJA/LO generates promulgating
order and signs by direction “Supplementary” orders are
required when further action on the case is required
PROMULGATING ORDER FORM & CONTENT
Type of Court and CACharges/Specs
May be summarizedPleas & FindingsSentence, if anyCA's Action: Word for WordExample: MCM Appendix 17
CHANGE 3 TO JAGMAN Updated Oct 98 Specifically authorizes a joint CA’s
Action and Promulgating Order in one document
Must be signed by CA Commands may use either methodNo point in two documents
APPELLATE REVIEW
MILITARY JUSTICE COURT SYSTEM
NAVY, MARINE, COAST GUARD, ARMY & AIR FORCE TRIAL COURTS
NMCCA CGCCA ACCA AFCCA(COURTS OF CRIMINAL APPEAL)
CAAF(COURT OF APPEALS FOR THE ARMED FORCES)
SUPREME COURT
SPCM w/o BCD or 1 YR CONF
Judge Advocate ReviewROT forwarded to SJA for GCMCA
Basic written reviewJurisdictionEach specification states an offenseSentence adjudged/approved is legal
SJA forwards to GCMCA if corrective action requiredTo JAG if GCMCA does not correct
RCM 1112
SPCM w/BCD or 1 YR CONF ROT Forward to JAG
ROT1105 Clemency MattersSJAR/LOR1106 Matters from DefenseCA’s ActionPromulgating Order
JAGAppellate Counsel AssignedForwards to Court of Criminal Appeal
Court of Criminal Appeals Review of case on BOTH facts and law Weighs evidence, credibility of witnesses,
and determines questions of FACT Keeping in mind court heard witnesses in
person May set aside findings or sentence
Dismiss charges completelyOrder rehearing on merits or sentenceOrder new post trial actions taken
COURT OF APPEALS FOR THE ARMED FORCES
Accused may appeal to CAAFCAAF has discretion to accept case“Good Cause” standard
JAG may certify case to CAAFCAAF must accept case
All Death CasesAppellant may not waive review
COURT OF APPEALS FOR THE ARMED FORCES
Review for legal errorDoes not weigh evidence or credibility
or witnesses If CAAF rules against member:May seek review by Supreme Court
• Per Article 67a, UCMJ
SPCM w/BCD or 1 YR CONF
Member may waive right to reviewIn writingWith assistance of defense counsel
Why?Quick DD-214 = JobNo longer subject to UCMJFew cases get relief
Case still gets JA Review like a Non-BCD SPCM GCMCA for Final Action
WAIVER OF APPELLATE REVIEW
GENERAL COURT-MARTIAL REVIEW
If less than 1yr AND no dischargeJAG Review per ARTICLE 69JAG may forward to CCA
All others handled like BCD SPCM Waiver of ReviewGet JA review like NON BCD SPCMForwarded to GCMCA for final
action
APPELLATE REVIEWOVERVIEW
•SPCM w/o 1yr confinement or BCDJudge Advocate Review
•SPCM w/1yr confinement or BCDCourt of Criminal Appeals (Art 66)Court of Appeals for Armed Forces (Art 67)Supreme Court (Art 67a)
•GCMDischarge or 1yr conf = Art 66 and maybe Art 67 ReviewArticle 69 JAG Review
ARTICLE 73PETITION FOR NEW TRIAL
Petition to OJAG Within two years after CA has
approved the sentence Grounds: new evidence fraud on the court
Post Trial Procedure
Blah blah blah blah blah blah blah. Blah blah blah blah
R.C.M. 1105. Blah blah blah blah blah blah blah. Blah blah R.C.M. 1106. Blah blah blah
blah. Blah blah blah blah
KEY TAKEAWAYS
When/how can CA commute punishment (e.g., BCD to confinement)
What are CA’s options when taking action?When can CA execute punitive discharge?
When is appellate review mandatory?