Maybe the CA really is the accused's best hope for relief Part Deux

Military appellate courts are fond of saying that "the convening authority is an accused's best hope for sentence relief." See, e.g., United States v. Davis, 58 M.J. 100, 102 (C.A.A.F. 2003). While some CAAFlog readers recently seemed to scoff at that notion, it turns out it might be true.

We have previously noted LT Michael J. Marinello's wonderful Naval Law Review article, Convening Authority Clemency: Is It Really an Accused's Best Chance of Relief?, 54 Naval L. Rev. 169 (2007). LT Marinello conducted a random sampling of 807 cases docketed with the Navy-Marine Corps Court of Criminal Appeals. The CA exercised clemency in 35 cases, or 4.337%. And this sampling would tend to statistically understate the overall percentage of cases in which clemency was awarded, because it would not capture any case in which the convening authority disapproved all findings of guilty, such as LTC Jordan's case.

Major Jeff Lippert conducted a review of three of the four CCAs' handling of BCD specials from fiscal years 1998 through 2002. Major Jeffrey D. Lippert, Automatic Appeal Under UCMJ Article 66: Time for a Change, 182 MIL. L. REV. 1 (2004). (The study didn't include Coast Guard CCA cases.) He found, "Of the over 12,000 BCD special cases the service courts reviewed, the service courts took action affecting the findings or sentence in under 350 cases, or less than three per cent (3%) of cases." Id. at 17.

So it preliminarily appears that the CA represents a better hope of relief than do the CCAs. And the disparity is likely greater than it might first appear because of the likelihood that sentence relief from the CA will have a greater tendency to be meaningful than sentence relief from the CCA, which often comes months or years after the sentence was actually executed.

But one must be cautious about that conclusion. The two articles studied different groups of cases and neither studied all court-martial cases from the relevant time period. LT Marinello studied a random sample of one service while MAJ Lippert studied a discrete subgroup of cases from three of four services.

Obtaining a definitive answer to the question of whether the CA is truly the accused's best hope of relief probably wouldn't be worth the effort. But based on the available statistics, the idea isn't scoffable.