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POST-TRIAL REVIEW & APPELLATE PROCEDURES

POST-TRIAL REVIEW & APPELLATE PROCEDURES. Learning Objectives. Understand the basic Post-Trial Review procedures: RCM 1105 matters SJA’s recommendation under RCM 1106 Understand the meaning and effect of the Convening Authority’s Action

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POST-TRIAL REVIEW & APPELLATE PROCEDURES

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  1. POST-TRIAL REVIEW & APPELLATE PROCEDURES

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

  3. 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)

  4. PRELIMINARY STEPS • Results of Trial: RCM 1101(a) • TC prepares following trial • Evidence of trial and outcome before Record of Trial Produced • Used by PSD to execute FF, R-in-R, & Automatic FF on DAY 15 • Used by Brig to determine release date • Sample in Post Trial Matters at page 2

  5. 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)

  6. PRELIMINARY STEPS R.C.M. 1105 • 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

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

  8. 1105 TIME PERIODS • GCM & SPCM W/BCD OR W/1YR CONF • 10 days from receipt of ROT • Plus, a second 10 Day period following receipt of SJAR • SPCM W/O BCD OR 1 YR CONF • 10 days from receipt of ROT • Upon timely request, the CA MAY grant an additional 20 Days • SJA/LO may approve • Only CA may disapprove

  9. 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?

  10. 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 SJA/LEGAL OFFICER RECOMMENDATION

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

  12. PRIOR TO FORWARDING SJAR/LOR TO CA • Serve SJAR/LOR on DC & Accused • Accused 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 matters • Should also comment upon any errors in the SJAR WAIVER APPLIES!!! • Failure to respond in time = WAIVER

  13. 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”

  14. SJAR/LORCOMMON 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

  15. CONVENING AUTHORITY ACTION • CA’s function - non-delegable • Drafted by SJA/LO, but personal decision of CA • Often 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

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

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

  18. CA SHALL CONSIDER: • Results of Trial • Recommendation of SJA/LO • 1105 and 1106 matters

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

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

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

  22. 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.

  23. 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

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

  25. 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 method • No point in two documents

  26. APPELLATE REVIEW

  27. MILITARY JUSTICE COURT SYSTEM SUPREME COURT CAAF (COURT OF APPEALS FOR THE ARMED FORCES) NMCCA CGCCA ACCA AFCCA (COURTS OF CRIMINAL APPEAL) NAVY, MARINE, COAST GUARD, ARMY & AIR FORCE TRIAL COURTS

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

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

  30. Court of Criminal Appeals • Review of case on BOTHfacts 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 completely • Order rehearing on merits or sentence • Order new post trial actions taken

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

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

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

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

  35. APPELLATE REVIEW OVERVIEW • SPCM w/o 1yr confinement or BCD • Judge Advocate Review • SPCM w/1yr confinement or BCD • Court of Criminal Appeals (Art 66) • Court of Appeals for Armed Forces (Art 67) • Supreme Court (Art 67a) • GCM • Discharge or 1yr conf = Art 66 and maybe Art 67 Review • Article 69 JAG Review

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

  37. Post Trial ProcedureBlah 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

  38. 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?

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