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The rise and fall of post-trial - is it time for the legislature to give us all some clemency?

Army Lawyer, Dec, 2007 by John A. Hamner

It is at the level of the convening authority that an accused has his best opportunity for relief.... (1)

I. Introduction (2)

The recent decision of the U.S. Court of Appeals for the Armed Forces (CAAF) in United States v. Moreno raises the question of the viability and efficacy of the military post-trial process. (3) In Moreno, the accused was convicted of rape and was sentenced to, among other punishments, confinement for six years. (4) Despite a relatively short record of trial, it took the convening authority 490 days to take action on the case. (5) From there, the case continued to have its processing woes, with the majority of the time (eighteen months) attributed to Moreno's appellate defense counsel requesting additional time to file a defense brief. (6) In total, 1688 days elapsed from the end of Moreno's trial until the U.S. Navy-Marine Corps Court of Criminal Appeals (NMCCA) made its decision on his appeal. (7)

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In determining that the lengthy post-trial processing time violated Moreno's due process right to speedy review and appeal, (8) the CAAF applied the four factors set forth in Barker v. Wingo. (9) Responding to the lengthy time from trial to action, the CAAF adopted a 120-day "presumption of unreasonable delay [standard] that will serve to trigger the Barker four-factor analysis where the action of the convening authority is not taken within 120 days of the completion of trial." (10) An appellant will still have to prove prejudice for processing that exceeds 120 days. (11) In practice, Moreno will result in more copious tracking of delay, and staff judge advocates (SJAs) may not be as hesitant to forward cases to the convening authority for action when the defense has failed to timely submit matters for the convening authority's consideration. Moreno's impact, however, is more than just a commitment to more detailed tracking. It brings to the forefront the tension between the post-trial clemency and appellate review processes.

The excessive delay in Moreno highlights the competing interests between the convening authority's action and judicial review, both of which are steps in the appellate process. (12) This conflict, at least in part, may be an attribute of a system in which the convening authority's intricate involvement in the process has outlived its usefulness. A review of the development of the post-trial process, key developments in the military justice system, judicial activism in the post-trial arena, and an examination of the rate of clemency reveal that the post-trial system is ripe for legislative change rather than continued judicial change.

II. Post-Trial Development and Diminishment

The development of the post-trial process is a function of legislative, judicial, and executive power. (13) The public's perception of fairness was a driving force throughout its development. (14) The public was extremely wary of the vast amount of power that the commanding officer wielded in the military justice system. (15) In developing the Uniform Code of Military Justice (UCMJ), the drafters addressed these underlying concerns. (16) One vestige that remained, however, was the ability of the convening authority to return to duty Soldiers essential to the war effort. (17) Though this was a reason for the convening authority's continued involvement, the effect was to bestow more rights on accused in an appellate process whose procedural safeguards exceeded that of the federal system. (18) It appeared to be a trade-off. In exchange for the system's failure to conform in every respect to the federal system, the convening authority would retain the vast power over the outcome of the case, but only under the guise of clemency. (19) Developments since the UCMJ's implementation have succeeded in increasing the public's confidence in the military justice system. These changes have resulted in a diminishing need for such an extensive post-trial review process.

A. Legislative Development

Any foray into the efficacy and viability of the post-trial process necessitates a look at its inception. Since the process was born amidst the Herculean effort of establishing a UCMJ, (20) it is also necessary to delve into some of the other essential decisions concerning accused's rights.

1. The UCMJ

Article 60 of the UCMJ is an accused's first bite at the appellate apple. It provides an accused the opportunity to "submit to the convening authority matters for consideration by the convening authority with respect to the findings and the sentence." (21) This stage of the process gives the convening authority the power to modify the findings and sentence of a court-martial as "a matter of command prerogative involving the sole discretion of the convening authority." (22)

Command prerogative is unique to the military and creates an internal conflict within the military appellate process. Command prerogative pits the convening authority's ability to grant clemency against judicial review. (23) The more time that elapses until the convening authority takes action, the more difficult it becomes to ensure that the accused will receive meaningful relief on appeal. (24) For example, in a fictional case in which an accused was given one year confinement and a bad-conduct discharge, had the convening authority taken the time that the convening authority did in Moreno to take action, the accused would have been released from confinement before the case was even sent to the service appellate court. (25) If the accused was successful on appeal, he would not receive meaningful credit because he would have already served his term of confinement. (26) He may receive monetary compensation for the time erroneously spent in confinement, but this is little consolation to an accused pondering the fate of his case while in confinement. (27) In the federal system, there is no intermediate stop for appellate review. (28) The reason the military has such a stop is found in the UCMJ's legislative history. (29)

The rise and fall of post-trial - is it time for the legislature to give us all some clemency?

Army Lawyer, Dec, 2007 by John A. Hamner

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