U.S. v. Rosenthal, 62 M.J. 261

Trial Stages: Initial Review: Post-trial Submissions

1. before a convening authority acts on the results of trial, an accused has the opportunity to submit to the convening authority any matters that may reasonably tend to affect the convening authority’s decision whether to disapprove any findings of guilty or to approve the sentence
2. under RCM 1105(d)(1), failure to submit post-trial matters within the time prescribed by the rule shall be deemed a waiver of the right to submit such matters; under RCM 1105(d)(3), the accused may expressly waive, in writing, the right to submit matters under this rule; once filed, such waiver may not be revoked; a waiver under RCM 1105(d) must be knowing and intelligent
3. when a case is remanded for a new convening authority’s action, the convening authority is not limited to considering the circumstances as they existed at the time of the initial review; the convening authority may consider other appropriate matters -- including changes in circumstances following the initial action on the case -- for purposes of determining whether clemency or other post-trial action is warranted; a servicemember has the corresponding right to bring matters in mitigation which were not available for consideration at the court-martial to the attention of the convening authority
4. a decision by an appellate court to set aside the convening authority’s action on the results of trial is a significant development because it entitles an appellant to a new post-trial proceeding; counsel for an appellant should ascertain the client’s views before deciding how to address the opportunities presented by the new proceeding; counsel cannot assume that a client, who previously declined to seek clemency in the immediate aftermath of a trial, will necessarily have the same view when an appellate court orders a new recommendation and action -- particularly when the opportunity to make a new submission arises more than two years later
5. in this case, where the court of criminal appeals remanded the case for a new convening authority’s action, the defense counsel erred by relying on instructions provided by appellant two years earlier in the immediate aftermath of trial not to provide any post-trial submission on his behalf without first ensuring that appellant had made a knowing and intelligent waiver of his right to make a submission during the second post-trial review process

Trial Stages: Initial Review: Action

1. the convening authority’s action provides the accused’s best hope for clemency
2. when a case is remanded for a new convening authority’s action, the convening authority is not limited to considering the circumstances as they existed at the time of the initial review; the convening authority may consider other appropriate matters -- including changes in circumstances following the initial action on the case -- for purposes of determining whether clemency or other post-trial action is warranted; a servicemember has the corresponding right to bring matters in mitigation which were not available for consideration at the court-martial to the attention of the convening authority

Trial Stages: Initial Review: Clemency

1. the convening authority’s action provides the accused’s best hope for clemency

Trial Stages: Appeals: Harmless / Prejudicial Error

1. error in failing to submit post-trial clemency matter is tested for prejudice; because clemency is a highly discretionary Executive function, there is material prejudice to the substantial rights of an appellant if there is an error and the appellant makes some colorable showing of possible prejudice; appellant’s unrebutted affidavit provides evidence relevant to clemency regarding changes in appellant’s circumstances during the two-year period between the convening authority’s first and second actions; appellant stated that he had matured, ceased his drug use, was studying for a commodity broker’s license, and wished to stay in the Marine Corps; the decision as to whether any or all of these matters would warrant clemency is a matter committed to the discretion of the convening authority under Article 60(c), UCMJ, 10 USC § 860(c), and RCM 1107; for purpose of this appeal, appellant has demonstrated a colorable showing of possible prejudice

Trial Stages: Appeals: Law of the Case

1. error in failing to submit post-trial clemency matter is tested for prejudice; because clemency is a highly discretionary Executive function, there is material prejudice to the substantial rights of an appellant if there is an error and the appellant makes some colorable showing of possible prejudice; appellant’s unrebutted affidavit provides evidence relevant to clemency regarding changes in appellant’s circumstances during the two-year period between the convening authority’s first and second actions; appellant stated that he had matured, ceased his drug use, was studying for a commodity broker’s license, and wished to stay in the Marine Corps; the decision as to whether any or all of these matters would warrant clemency is a matter committed to the discretion of the convening authority under Article 60(c), UCMJ, 10 USC § 860(c), and RCM 1107; for purpose of this appeal, appellant has demonstrated a colorable showing of possible prejudice

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. the issue of waiver of post-trial submissions is a question of law reviewed under a de novo standard of review