Friday, November 30, 2007

AF JAG certifies CA reassessment issue

An Air Force JAG certificate of review was filed at CAAF today, seeking review of the Air Force Court's unpublished decision in United States v. Perez, No. ACM 36799 (A.F. Ct. Crim. App. Sept. 12, 2007). (The Air Force Court's opinion is available here. Thanks, JMTGst!)

Senior Airman Perez was found guilty of rape, disobeying an order, and assault consummated by a battery. The military judge sentenced him to confinement for 18 months, a BCD, and reduction to E-1. After trial, the SJA's office discovered that the alleged rape victim had recanted. The CA ordered a post-trial Article 39(a) session. The military judge then found that credible evidence existed that the alleged victim had recanted and that that new evidence warranted a new trial. He also stated that had he been aware of the new evidence, he would not have convicted Perez of rape and that he would have imposed a sentence of only confinement for six months, reduction in grade, and total forfeitures for the remaining offenses.

Rather than order a new trial, the convening authority disapproved the finding of guilty to the rape offense. At the SJA's advice, the CA approved a sentence of a BCD, confinement for 206 days, and reduction to E-1. (Note that the MJ had said his sentence for the remaining offenses would not have included a punitive discharge.)

The issue before the Air Force Court was whether this action by the convening authority was an unreviewable exercise of clemency or a legal matter that could be subjected to the equivalent of a Sales/Peoples analysis. The Air Force Court concluded that it was the latter. The court reasoned:

In this case, although there was no error at the time of trial, thereafter new evidence was discovered. This evidence met the criteria, under R.C.M. 1210, for a new trial. Rather than ordering a rehearing on findings and sentencing or sentencing only, the convening authority decided to take other corrective action designed solely to provide an expeditious means to correct the error. See R.C.M. 1107(c)(2)(A), Discussion. In the case sub judice, the actions of the convening authority amount to corrective action based upon errors (new evidence) rather than action in the form of clemency.

The court then ruled that the CA erred in his reassessment when he approved a sentence greater than that which the MJ would have adjudged. The court reasoned:

The convening authority had the benefit of knowing exactly what the sentencing authority would have done, but he reassessed a sentence greater than that which the sentencing authority would have imposed absent the error (new evidence). Under the unique circumstances of this case, the correct standard would have been to order a sentence rehearing or apply the above referenced standard for sentence reassessment.

The correctness of that ruling is now before CAAF.


John O'Connor said...

I don't think it's quite accurate to say that the sentencing authority's after-the-fact statements of what he would have done at truial on a different set of facts is conclusively what actually would have happened, but it seems to me that the obvious call here was to appove what the MJ said he would have done or order a new trial.

Oh, and the notion that the sentecne reduction is now an unreviewable act of clemency seems borderline insane, at least under these facts. I'm as much for keeping the courts out of the business of reviewing clemency actions, but if this was just clemency, then the accused got no sentencing relief (as opposed to clemency) based on the victim's recantation, and wouldn't he have a really strong case of a new trial under such circumstances. The reduction in findings and sentence can't be both an adequate relief for the victim recantation (so as to avoid the need for a new trial) and an unreviewable act of clemency at the same time.

Christopher Mathews said...

The Air Force Court's web site seems to have been down for some time now ...

I've had luck accessing the AFCCA website by removing the first "s" from the URL, thusly:

Anonymous said...

I wonder why the judge didn't go one step further and just fix the error himself, instead of leaving it to the convening authority? See e.g. U.S. v. LePage, 59 M.J. 659 (NMCCA 2003).


Anonymous said...

Based on Ct's opinion, I'd say b/c by time of post-trial session re: new evidence, MJ had already authenticated record.

Anonymous said...

I'm moderately surprised that this was certified to CAAF. Assuming that CAAF finds the CCA's analysis to be flawed, why couldn't the CCA on remand simply use its powers to review sentence appropriateness and reduce the sentence? Clearly the post-trial recommendation for sentence reduction is within "record" for sentence review under 66. The SJA deserves a nasty FN for creating this mess.