U.S. v. Davis, 58 M.J. 100

Military Justice Personnel: Convening Authority: Disqualification

1. as a matter of right, each accused is entitled to an individualized, legally appropriate, and careful review of his sentence by the convening authority; this right is violated where a convening authority cannot or will not approach post-trial responsibility with the requisite impartiality; under such circumstances, a convening authority must be disqualified from taking action on a record of court-martial
2. this Court's decisions disqualifying convening authorities from taking post-trial action have fallen into two categories; in the first category, a convening authority will be disqualified if he or she is an accuser, has a personal interest in the outcome of the case, or has a personal bias toward the accused; in the second category, convening authorities will be disqualified if they display an inelastic attitude toward the performance of their post-trial responsibility
3. it is not disqualifying for a convening authority to express disdain for illegal drugs and their adverse effect upon good order and discipline in the command; a commanding officer or convening authority fulfilling his or her responsibility to maintain good order and discipline in a military organization need not appear indifferent to crime; adopting a strong anti-crime position, manifesting an awareness of criminal issues within a command, and taking active steps to deter crime are consonant with the oath to support the Constitution; they do not per se disqualify a convening authority
4. where the convening authority made direct reference to his post-trial role, asserting that those convicted of using drugs should not come crying to him about their situations or their families’, those words reflected an inflexible attitude toward the proper fulfillment of post-trial responsibilities in cases involving convictions for wrongful use of controlled substances; the words lacked balance and transcended a legitimate command concern for crime or unlawful drugs
5. regardless of the nature of the offense, a convicted servicemember is entitled to individualized consideration of his case post-trial; that individualized consideration must be by a neutral convening authority capable of fulfilling his or her statutory responsibilities; statements reflecting an unwillingness to consider each case fully and individually create a perception that a convicted servicemember will be denied the material right to individualized post-trial consideration and action; where a convening authority reveals that the door to a full and fair post-trial review process is closed, this Court has held that the convening authority must be disqualified
6. when the convening authority remarked that that those convicted of using drugs should not come crying to him about their situations or their families’, he erected a barrier to clemency appeals by convicted drug users who wished to have their situation or families’ considered, and he revealed his attitude toward the clemency process under such circumstances; his words reflected that the barrier and attitude related directly to his post-trial role as a convening authority; the words unmistakably reflected an inelastic attitude and predisposition to approve certain adjudged sentences; this attitude is the antithesis of the neutrality required of a commander’s prerogative that is taken in the interests of justice, discipline, mission requirements, clemency, or other appropriate reasons

Trial Stages: Initial Review: Action

1. a convening authority is vested with substantial discretion when he or she takes action on the sentence of a court-martial; as a matter of command prerogative, a convening authority in his sole discretion, may approve, disapprove, commute, or suspend the sentence in whole or in part; the convening authority’s broad authority is a significant reason that this Court has noted that the convening authority is an accused’s best hope for sentence relief
2. the convening authority's action on the sentence is not a legal review; rather, a convening authority considers numerous factors and reasons in determining a sentence that is warranted by the circumstances of the offense and appropriate for the accused; the convening authority must consider any matters submitted by the accused pursuant to Article 60(b), UCMJ
3. in the performance of post-trial duties, a convening authority acts in a role similar to that of a judicial officer; the requirement for impartiality assures that the convening authority gives full and fair consideration to matters submitted by the accused and determines appropriate action on the sentence
4. as a matter of right, each accused is entitled to an individualized, legally appropriate, and careful review of his sentence by the convening authority; this right is violated where a convening authority cannot or will not approach post-trial responsibility with the requisite impartiality; under such circumstances, a convening authority must be disqualified from taking action on a record of court-martial
5. this Court's decisions disqualifying convening authorities from taking post-trial action have fallen into two categories; in the first category, a convening authority will be disqualified if he or she is an accuser, has a personal interest in the outcome of the case, or has a personal bias toward the accused; in the second category, convening authorities will be disqualified if they display an inelastic attitude toward the performance of their post-trial responsibility
6. where the convening authority made direct reference to his post-trial role, asserting that those convicted of using drugs should not come crying to him about their situations or their families’, those words reflected an inflexible attitude toward the proper fulfillment of post-trial responsibilities in cases involving convictions for wrongful use of controlled substances; the words lacked balance and transcended a legitimate command concern for crime or unlawful drugs
7. regardless of the nature of the offense, a convicted servicemember is entitled to individualized consideration of his case post-trial; that individualized consideration must be by a neutral convening authority capable of fulfilling his or her statutory responsibilities; statements reflecting an unwillingness to consider each case fully and individually create a perception that a convicted servicemember will be denied the material right to individualized post-trial consideration and action; where a convening authority reveals that the door to a full and fair post-trial review process is closed, this Court has held that the convening authority must be disqualified
8. when the convening authority remarked that that those convicted of using drugs should not come crying to him about their situations or their families’, he erected a barrier to clemency appeals by convicted drug users who wished to have their situation or families’ considered, and he revealed his attitude toward the clemency process under such circumstances; his words reflected that the barrier and attitude related directly to his post-trial role as a convening authority; the words unmistakably reflected an inelastic attitude and predisposition to approve certain adjudged sentences; this attitude is the antithesis of the neutrality required of a commander’s prerogative that is taken in the interests of justice, discipline, mission requirements, clemency, or other appropriate reasons