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

B. Does the Convening Authority Still Have a Role in the Post-Trial Process?

The legislative history shows that the convening authority's involvement in the post-trial process was meant more to give the convening authority the opportunity to keep essential personnel than to provide additional rights to accused. (195) With judicial activism, the post-trial rights of accused have continued to grow as the courts attempted to micromanage the convening authority's review. With the courts' willingness to use quasi-clemency power, does the convening authority still have a useful role in the post-trial process?

Since the appellate courts have shown a reluctance to return cases to a convening authority unfamiliar with them, they must believe that familiarity is essential to exercising command prerogative. It follows then, that the same convening authority would be absolutely essential in companion cases. The figures show that convening authorities are willing to dole out reductions in confinement. In companion cases, this may be essential to reaching an equitable result. The cases stemming from the Son Thang incident during the Vietnam War provide great examples of a convening authority using this power. (196) In Son Thang, a Marine Corps patrol known as a "killer team" went to a series of huts and in total killed sixteen Vietnamese women and children. (197) The ensuing judicial processing of the cases produced varying results for the five members of the patrol.

   Four general courts-martial resulted from the incident. A panel of
   officers convicted Private Michael A. Schwarz of premeditated
   murder and sentenced him to confinement for life. A panel of
   officer and enlisted members convicted Private First Class Samuel
   G. Green, Jr., of unpremeditated murder and sentenced him to five
   years in confinement. Another officer panel acquitted Lance
   Corporal Randy Herrod [(the patrol leader and arguably the most
   culpable)], and a military judge acquitted Private First Class
   Thomas R. Boyd. The government granted Private First Class Michael
   S. Krichten immunity in exchange for his testimony.... (198)

With such vast difference in sentences for individuals who were all involved in the same incident, this seemed an appropriate case for the convening authority to adjust the sentences. The convening authority reduced Green and Schwarz's sentences to one year. (199) Some would argue that this is an inappropriate use of the convening authority's post-trial powers because each person was tried before a court that heard all of the evidence, and if it found the person guilty, presumably fashioned a sentence commensurate with his culpability. Anyone who has read the book covering the incident, however, could easily reach the conclusion that the courts got it wrong. This type of clemency is certainly a far cry from the convening authority exercising the authority to keep personnel essential to the war effort. Consequently, Son Thang demonstrates that convening authorities can effectively grant clemency other than for purposes of advancing the war effort. With the courts' willingness to grant clemency, the convening authority and the courts are potentially at odds. Are the courts perhaps better suited for this type of clemency review?