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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
At the end of a trial, the military judge could explain to the accused that he may submit matters to the convening authority in the hope that the convening authority would exercise his power to grant clemency. The military judge would also explain post-trial representation. After authentication of the record of trial, the case would be sent to the accused and to the respective court of criminal appeals. If the convening authority did not exercise his authority within a certain specified time from authentication, say forty-five days, then the court of criminal appeals could presume that the convening authority had approved the findings and sentence as adjudged without affirmative action on his part. (210) Additionally, once forty-five days from authentication had elapsed, representation would pass from the defense counsel to assigned appellate counsel. (211) Whereas under the current system the SJA must advise the convening authority in painstaking detail, the proposal would only obligate advice to the convening authority when an accused submits matters for consideration. As when an SJA advises a commander on a letter of reprimand rebuttal, there would be no set format for the advice. Furthermore, because the right to exercise clemency belongs to the convening authority, new matter is immaterial. Thus, there is no requirement to serve anything on the accused except for the record of trial. If the accused fails to submit something within the prescribed time, then he has waived any consideration and the case is now within the power of the appellate court. The simplification of the post-trial process would restore the original purpose behind having the convening authority involved and greatly reduce post-trial processing times. It will not, however, cure every case.
In United States v. Moreno, the post-trial delays occurred at numerous stages in the process. (212) It took 288 days to authenticate the record of trial and 490 days for the convening authority to take action. (213) Even under the proposed post-trial process, the case would not have been ready for appellate review until 333 days after trial. (214) No proposal can account for the time to authenticate the record of trial. Responsibility for authentication must remain with the convening authority. (215) Authentication under the proposed process serves to notify the accused of two important events: (1) that he may submit matters in clemency within thirty days of being served the authenticated record of trial, if he wishes to do so, and (2) that in forty-five days from authentication, his right to representation will pass from the attorney who represented him at trial to his assigned appellate defense counsel. (216) The countdown to presuming that the convening authority approves the case must begin at authentication rather than sentencing to ensure that there is no gap in representation for the accused. If forty-five days elapsed from sentencing and authentication had not occurred, then appellate counsel would not have a record of trial. This would preclude appellate counsel from providing meaningful advice. In effect, this would leave an accused without effective representation from trial until authentication. In Moreno, the proposed process would have reduced the processing time by 32%. Even this significant reduction shows that there is not a cure-all for every case. Simplification of the convening authority's post-trial involvement, however, removes the inherent conflict between the time devoted to the convening authority's exercise of clemency powers and an accused's Fifth Amendment due process right to a speedy trial review. (217) Radical change such as this can only be accomplished via legislation. This proposed process comports with the original intent behind the convening authority's involvement, while satisfying basic due process rights that the courts have recognized. (218)
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