2. POST-TRIAL REVIEW & APPELLATE PROCEDURES

3. Learning Objectives n Understand the basic Post-Trial Review procedures: Ý RCM 1105 matters Ý SJA’s recommendation under RCM 1106 n Understand the meaning and effect of the Convening Authority’s Action n Describe the basic Appellate scheme including mandatory Appeals

4. Progression of Post-Trial Events n Last Day of Trial n Results of Trial n Transcription of the Record n Authentication of Record n Service of Record n Submission of 1105 Clemency n SJAR n Service of SJAR n Submission of 1106 Matters n SJAR Addendum n Convening Authority Action n Service of Convening Authority Action n Mailing of Complete Record of Trial to Navy and Marine Corps Appellate Relief Activity (OJAG)

5. PRELIMINARY STEPS Results of Trial: RCM 1101(a) ÞTC prepares following trial ÞEvidence of trial and outcome before Record of Trial Produced ÞUsed by PSD to execute FF, R-in-R, & Automatic FF on DAY 15 ÞUsed by Brig to determine release date ÞSample in Post Trial Matters at page 2

6. PRELIMINARY STEPS n RECORD OF TRIAL (ROT) Ý GCM & SPCM W/Punitive discharge or >6mos conf/FOP Verbatim Record….months!!! Ý GCM & SPCM without Punitive discharge or <6mos conf/FOP Summarized Record... Quicker, but still months TC Responsible for preparation Ý Normally authenticated by MJ n Served on DC or Accused (Accused elects in Appellate Rights Statement)

7. PRELIMINARY STEPS n Prior to taking action, CA must give defense an opportunity to submit “matters” for consideration n Any matter which may reasonably tend to affect the CA’s decision to approve, disapprove, change findings or sentence R.C.M. 1105

8. R.C.M. 1105 MATTERS n Clemency Recommendations Ý Military Judge, Members, Chain of Command n E & M Stuff Ý Both new and old, CA has no obligation to read ROT n Allegations of legal error Ý If not raised, issue NOT WAIVED

9. 1105 TIME PERIODS n GCM & SPCM W/BCD OR W/1YR CONF Þ10 days from receipt of ROT ÞPlus, a second 10 Day period following receipt of SJAR n SPCM W/O BCD OR 1 YR CONF Þ10 days from receipt of ROT n Upon timely request, the CA MAY grant an additional 20 Days ÞSJA/LO may approve ÞOnly CA may disapprove

10. FORMAT FOR 1105 SUBMISSIONS n Generally done with a memo from DC to CA, with supporting enclosures n Use Standard Navy Correspondence Format n What clemency requested? Why should CA do it? How is justice best served by granting requested clemency?

11. SJA/LEGAL OFFICER RECOMMENDATION n Required in GCM, BCD SPCM, OR SPCM w/1yr confinement n Purpose - To assist the CA in taking action on the court-martial n SJA/LO: Commissioned Officer!! Ý Command without SJA, may use a “loaner” judge advocate

12. SJAR / LOR: MUST INCLUDE n Findings/Sentence n Summary of SRB n PTR (if any) n Effects of PTA (if any) n Specific Recommendation n Address legal error raised Clemency recommendation by MJ (if any) RCM 1106

13. PRIOR TO FORWARDING SJAR/LOR TO CA n Serve SJAR/LOR on DC & Accused Ý Accused may elect to have copy served on DC, but DC ENTITLED TO OWN COPY! n DC has 10 days to respond: Ý This is second window to submit clemency matters Ý Should also comment upon any errors in the SJAR WAIVER APPLIES!!! Ý Failure to respond in time = WAIVER

14. SUPPLEMENTAL SJAR/LOR n SJA/LO may issue a Supplemental Recommendation based on DC’s response n SJA must serve Supplemental SJAR on DC if it contains “New Matter”

15. SJAR/LOR COMMON ERRORS n Charges, pleas, findings, sentence, or PTA impact incorrectly stated n Failure to note MJ or members clemency recommendation n Inaccurate summary of service record n Failure to make specific recommendations n No proof of service on accused & counsel n Additional matters to CA without chance for member to respond

16. CONVENING AUTHORITY ACTION n CA’s function - non-delegable Ý Drafted by SJA/LO, but personal decision of CA Ý Often SJAR will include CA’s action for CA’s signature that is consistent with SJA recommendation n Case may be forwarded to GCMCA for “Substitute” CA Action

17. CA’S ACTION n Action on findings Ý Not required!! Ý CA can approve, approve a lesser included offense, or disapprove each finding

18. CA’S ACTION n Action on sentence Ý This required for each part of the sentence n On each piece of adjudged punishment CA must either: Ý Approve Ý Approve and suspend Ý Disapprove Ý Mitigate or commute

19. CA SHALL CONSIDER: ÜResults of Trial ÜRecommendation of SJA/LO Ü1105 and 1106 matters

20. Ü Record of Trial Ü Accused's SRB Ü Other matters ã CA MUST notify accused of adverse matters and afford opportunity to rebut CA MAY CONSIDER

21. EXECUTION OF SENTENCE n Once approved, CA’s Action also “executes” unsuspended punishment Ý Except discharge, dismissal and death n Execution = Order to carry out sentence n However many punishments already in effect Ý Confinement: Day of Trial Ý FF and RinR: Day 15

22. CONTENT OF CA’S ACTION n Review Example at page 35 of POST TRIAL GUIDE n Examples of all possible actions taken in Appendix 16, MCM

23. SUSPENDED CONFINEMENT n 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.

24. PROMULGATING ORDER n Publish the results of trial and CAA n Issued in EVERY SPCM/GCM case n SJA/LO generates promulgating order and signs by direction n “Supplementary” orders are required when further action on the case is required

25. PROMULGATING ORDER FORM & CONTENT n Type of Court and CA n Charges/Specs Þ May be summarized n Pleas & Findings n Sentence, if any n CA's Action: Word for Word n Example: MCM Appendix 17

26. CHANGE 3 TO JAGMAN n Updated Oct 98 n Specifically authorizes a joint CA’s Action and Promulgating Order in one document n Must be signed by CA n Commands may use either method Ý No point in two documents

27. APPELLATE REVIEW

28. 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

29. SPCM w/o BCD or 1 YR CONF n Judge Advocate Review Ý ROT forwarded to SJA for GCMCA n Basic written review Ý Jurisdiction Ý Each specification states an offense Ý Sentence adjudged/approved is legal n SJA forwards to GCMCA if corrective action required Ý To JAG if GCMCA does not correct RCM 1112

30. SPCM w/BCD or 1 YR CONF n ROT Forward to JAG Ý ROT Ý 1105 Clemency Matters Ý SJAR/LOR Ý 1106 Matters from Defense Ý CA’s Action Ý Promulgating Order n JAG Ý Appellate Counsel Assigned Ý Forwards to Court of Criminal Appeal

31. Court of Criminal Appeals n Review of case on BOTH facts and law n Weighs evidence, credibility of witnesses, and determines questions of FACT Ý Keeping in mind court heard witnesses in person n May set aside findings or sentence Ý Dismiss charges completely Ý Order rehearing on merits or sentence Ý Order new post trial actions taken

32. COURT OF APPEALS FOR THE ARMED FORCES n Accused may appeal to CAAF Ý CAAF has discretion to accept case Ý “Good Cause” standard n JAG may certify case to CAAF Ý CAAF must accept case n All Death Cases Ý Appellant may not waive review

33. COURT OF APPEALS FOR THE ARMED FORCES n Review for legal error Ý Does not weigh evidence or credibility or witnesses n If CAAF rules against member: Ý May seek review by Supreme Court Per Article 67a, UCMJ

34. SPCM w/BCD or 1 YR CONF n Member may waive right to review Ý In writing Ý With assistance of defense counsel n Why? Ý Quick DD-214 = Job Ý No longer subject to UCMJ Ý Few cases get relief n Case still gets JA Review like a Non- BCD SPCM GCMCA for Final Action WAIVER OF APPELLATE REVIEW

35. GENERAL COURT- MARTIAL REVIEW n If less than 1yr AND no discharge Ý JAG Review per ARTICLE 69 Ý JAG may forward to CCA n All others handled like BCD SPCM n Waiver of Review Ý Get JA review like NON BCD SPCM Ý Forwarded to GCMCA for final action

36. ARTICLE 69 REVIEW n GCM with no discharge and less than 1yr confinement n JA review forwarded when GCMCA fails to take recommended corrective action n Application by accused REVIEW BY OJAG

37. ARTICLE 69 REVIEW n Request by member Ý 2 years from “final action” Ý Based upon new evidence, fraud on court, lack of jurisdiction, prejudicial error, inappropriate sentence n Active Duty: Via CO, CA, GCMCA n Civilian: Directly to OJAG n JAG: May take corrective action or forward to CCA

38. APPELLATE REVIEW OVERVIEW SPCM w/o 1yr confinement or BCD ÞJudge Advocate Review SPCM w/1yr confinement or BCD ÞCourt of Criminal Appeals (Art 66) ÞCourt of Appeals for Armed Forces (Art 67) ÞSupreme Court (Art 67a) GCM ÞDischarge or 1yr conf = Art 66 and maybe Art 67 Review ÞArticle 69 JAG Review

39. ARTICLE 73 PETITION FOR NEW TRIAL n Petition to OJAG n Within two years after CA has approved the sentence n Grounds: Ý new evidence Ý fraud on the court

40. NAVAL CLEMENCY AND PAROLE BOARD MISSION To review case files of selected Navy and Marine Corps offenders to determine eligibility for clemency and/or parole. To deny, grant or recommend clemency and/or parole to the Secretary of the Navy as appropriate.

41. Appeal? Case Processing Recommendation to SECNAV Recommendation to SECNAV Denial /Approval Receiving & Docketing BoardMeetingBoardMeeting Notify interested parties Input File Data into CAPS II Database Gather info required Schedule on Docket Distribute to Members Briefing Section Repeat GCM Cases (from files) New Cases (GCM & SPCM) Prepare Packet

42. SECNAV Decides n Cases in which SECNAV has personally indicated an official interest n Cases where granting clemency/parole may become the subject of controversy or substantial congressional or media interest n The offender is an officer or midshipman n National security is involved n Life without parole cases n All Other cases are handled by the Assistant Secretary of the Navy (Manpower and Reserve Affairs)

43. Bottom Line for NC&PB n Balancing- Ý The best interests of society Ý Military good order and discipline Ý The rehabilitation of the individual offender n Decisions are Inherently Discretionary

45. 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

46. KEY TAKEAWAYS n When/how can CA commute punishment (e.g., BCD to confinement) n What are CA’s options when taking action? Ý When can CA execute punitive discharge? n When is appellate review mandatory?