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?