Monday, January 14, 2008

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.


Christopher Mathews said...

"So it preliminarily appears that the CA represents a better hope of relief than do the CCAs."

I'm not sure I understand why this is a remarkable conclusion.

Convening authorities are empowered to act to correct legal errors and also to grant clemency. Since CCAs are not in the clemency business, comparing them is sort of like comparing apples to toaster ovens. Moreover, to the extent the CA's post-trial responsibilities overlap with those of the CCA, he essentially preempts the service court's action: if the CA corrects an error, that error isn't part of the CCA's business anymore, either.

I would be more interested in seeing a comparison of the number of legal errors resolved at the CA action stage versus the number of new errors generated. Whether or not the adage that the convening authority is an appellant's best chance for relief is true, I'm confident that the convening authority's action represents an appellant's best chance for relief from the CCA.

db coooper said...

JOC makes a great point. CCAs can only grant relief for prejudicial legal error. By comparison, CAs have a broader scope to act - they can grant clemency not only for legal error, but also on simple "'taint fair" equity grounds, which can encompass just about anything. While such issues may make a cathartic appearance in Grostefon matters, they rarely affrect the CCA's decision.

I am curious if MAJ Lippert accounted only for "meaningful" relief in his article. For example, if a CCA deletes language in a specification and then affirms the sentence under US v. Sales, does that really count as "relief?" It may technically constitute relief, but probably lends little comfort to an appellant.

No Man said...
This comment has been removed by the author.
No Man said...

I know CAAFlog isn't offended when people call him JOC, at least not all that much, but Judge Mathews the Great . . . that's like calling Justice Brennan, Judge Judy :-)

John O'Connor said...

No Man:

Between Justice Brennan and Judge Judy, which one is the good one?

I was going to post that d.b. cooper should stay hidden in the forests of Oregon for misattributing Christopher Mathews' post to me, but I see you have managed to make the same point while attempting to dump on me, which is a laudable two-fer.

db cooper said...

Judge Matthews & JOC - You have my humble apologies for confusing your identities. I am highly sensitive to that issue myself, as I am often confused with the low rent B-movie actor D.B. Sweeney.

Christopher Mathews said...

I thought about telling you to go take a flying leap, but then I realized ...

Anonymous said...

Can we insert the SJA into the methodology? I wonder what percentage of SJARs recommend some kind of relief to the CA?

The issue here would be where the SJA recommends some kind of relief and the CA says, "no."

A wild guess based on anecdotals, I would say this could happen around 10% of the time.

Christopher Mathews said...

I once worked for an SJA who would, if the convening authority disagreed with his recommendation, change the recommendation to match the action. I've heard of others who did the same. Leaving aside whether that's a good idea or bad, it's bound to skew the data if it's in the least bit prevalent.

Anonymous said...

Thanks for the input. It sounds like the military version of Enron or Arthur Andersen lawyering.