A reply to the report of the commission on the 50th anniversary of the Uniform Code of Military Justice : "the Cox Commission" - May 2001 - 50th anniversary of the Uniform Code of Justice

Air Force Law Review, Wntr, 2002 by Theodore Essex, Leslea Tate Pickle

The court has recognized the convening authority's role in protecting the rights the convicted airmen as well:

Moreover, as noted above, appellant's offenses were committed prior to the effective date of Article 58b. Thus, the convening authority still had the power to remit or suspend any or all of the adjudged forfeitures under the clemency powers granted him in Article 60, UCMJ, 10 USC [section] 860 (1983). We continue to believe that the convening authority remains "the accused's best hope for sentence relief." See United States v. Bono, 26 M.J. 240, 243 n.3 (CMA 1988), citing United States v. Wilson, 9 U.S.C.M.A. 223, 226, 26 C.M.R. 3,6 (1958). A recommendation by a military judge must be brought to the attention of the convening authority to assist him in considering the action to take on the sentence. (66)

The convening authority is bound by law to act fairly and impartially. If he fails to do so at any step in the proceedings, he must disqualify himself, or the military judge will remove him. Failure to do so can result in a case being overturned.

The fairness of the convening authority is carefully scrutinized. Convening authorities have been disqualified where there was a perception that their Staff Judge Advocate was biased (67) or where the conveying authority had personally found probable cause and authorized a search. (68) Convening authorities have also been disqualified for having granted immunity to witnesses, (69) for potential personal bias, (70) and for personal remarks. (71) In short, the convening authority's actions are continually reviewed by the military justice system. Any bias or perceived bias can cause the convening authority to be removed and may also require corrective action ranging from a new sentencing hearing to a new trial. (72)

The only unchecked authority the UCMJ gives to a convening authority is the ability to provide sentence relief to a convicted airman. If the convening authority finds the sentence too harsh, he may lessen the punishment. (73) This type of influence, the ability to provide mercy, certainly cannot be challenged as creating the appearance of injustice for a service member.

The other functions the commander carries out, from appointing the Article 32 investigating officer (IO); selecting the court members (and maybe trial counsel); deciding which witnesses to bring in for trial; deciding whether or not to order a sanity board; deciding on who gets immunity; and whether the findings should be approved are all subject to defense challenge and judicial review. While the commander may "loom" over a court-martial, it is inconceivable how the presence of a professional officer who is bound by law to do justice, select the most qualified members of a court, and not interfere with it once the court is formed threatens justice more than an unfettered prosecutor who is out to build a record. Indeed, the appellate system seems to have had to deal with just as many cases of overzealous government counsel as with convening authorities that attempt to achieve an unjust conviction or harsher sentence. (74) Absent evidence to the contrary, anyone defending cases under the UCMJ should consider c arefully whether attorneys, who only deal with airman under criminal investigation, or commanders, who deal with all airmen, offer the most neutral and measured consideration of an individual case.