Thursday, November 01, 2007

Best chance of relief?

Several of the articles in the new Naval Law Review look interesting, but first on my reading list is Lieutenant Michael J. Marinello, Convening Authority Clemency: Is It Really an Accused's Best Chance of Relief?, 54 Naval L. Rev. 169 (2007).

LT Marinello tries to answer the question of how often CAs actually grant post-trial relief. He conducted a survey to generate data. We all owe him a debt of gratitude.

The survey examined 807 Navy and Marine Corps courts-martial tried between 1999 and 2004 that produced a sentence qualifying the case for automatic appellate review. (Those 807 cases represent more than 7.5 of the 10,675 appeals docketed with the Navy-Marine Corps Court over that period. That is quite a large sample size, producing a very respectable 3.32 margin of error. But why 807 cases?)

Of the 807 surveyed general and special courts-martial, "the convening authority exercised clemency only 35 times. That is, clemency was exercised in only 4 percent of the courts-martial reviewed. Meanwhile, appellants submitted clemency matters to the convening authority in approximately 33% of the cases reviewed." Id. at 195-96.

LT Marinello concludes: "[I]f the power of the convening authority to exercise clemency represents an accused's best hope of relief, then there is not much hope." Id. at 203.

Of course, the exercise of clemency may be -- and probably is -- clustered mainly in the most serious cases, where the convening authority's discretion is at its zenith. For example, in the 15 known courts-martial that have resulted in death sentences since 1984, the convening authority commuted the death sentence in two -- a 13% clemency rate. And just two nights ago we looked at a case where a convening authority reduced the adjudged sentence of confinement for 125 years in a contested case to a mere 75 years of confinement. See United States v. Garcia, 57 M.J. 716 (N-M. Ct. Crim. App. 2002). So it is possible that the convening authority's clemency powers are more meaningful to those who need them most than this study's 4 percent figure would suggest.

But thanks to LT Marinello's research, we now know far more than we did before. (Or at least we would if we somehow managed to learn that this article was published in the under-the-radar Volume 54 of the Naval Law Review.) BZ!


John O'Connor said...

I'll say once again: an accused's best chance for sentencing relief is that the SJA will dork up the CA's action and the CAAF will give effect to the error. What a system.

Anonymous said...

Concur. Also relief may come when the SJA dorks up the convening orders, SJAR, SJAR addendum, and promulgating order.

Anonymous said...

This is just a hunch, but I also wonder sometimes how often some CA's really and truly contemplate clemency requests from an accused. Seems in my experience (and especially at larger commands), the CA's usually listen to their SJA's, whose cold, cold hearts are so very hard to melt.

I recall two instances from my trial defense work where a client received clemency: (1) where the military judge recommended relief (which I frankly thought was a cop-out by the MJ); and, (2) where the usual "hands-on" base SJA was on leave and the substitute SJA didn't express to the tenant-command CA a strong opinion re my client's request to disapprove the BCD. The CA did, in fact, disapprove the BCD, which later rankled the absent SJA, who assumed probably rightly that the disapproval would not have happened had he been present.

But two questions: (1) do you think command size plays a role in success rates? (2) how frequently do you think SJA’s recommend granting the requested clemency?

egn said...

As an SJA, I recall recommending clemency at least once, maybe even twice, to the convening authority. In each case, the CA followed my advice and disapproved the BCD, then initiated administrative discharge procedures.

But then again, I have, from time to time, been known as a defense hack.

John O'Connor said...

I think you're right that CAs probably mostly listen to their SJA, and SJAs are probably highly disinclined to recommend clemency.

I will say this. When I was a TC, I tried to ingrain in my CAs (well, my SpCMCAs, as I had no real direct contact with the GCMCAs) that they should be disinclined to get too bowled over by a clemency package because it was a one-sided advocacy piece. That said, I probably wrote four or five recommendations for clemency as a TC, with most (if not all) of those cases being witnesses who testified at another court-martial. I found that getting the TC on board with a clemency request almost always did the trick.

If I were a TC today, I would take that recent decision holding that a DC committed IAC by failing to submit a clemency request for his UA client and I would do a tour of every Battalion CP for which I prosecuted. I would sit down with every CO and XO, hand them a copy of the decision and explain that, basically, defense counsel now have a clear duty to hide negative facts (like the accused seeking clemency is UA) when submitting clemency matters and that they ought to keep that in mind when considering clemency requests.

And to answer directly one of Heavy Hermeneus's questions, at least in the Marine Corps, I bet clemency gets harder the bigger the command. A GCMCA has an SJA on his or her staff. They will tend to be very system-oriented and likely to dissuade efforts at clemency based on bigger picture concerns such as not wanting to encourage contested cases by essentially giving a PTA after the fact. The Battalions don't have an SJA on staff, and get a lot of their advice from a non-lawyer legal officer, who may be very inexperienced and less system-savvy (and less jaded). Also, to the extent platoon commanders or SNCOs are inclined to try to make a personal appeal for clemency for their servicemembers, they have a lot more ability to get access to the SpCMCA than the GCMCA.

Mike "No Man" Navarre said...

Three factors to chew on in clemency, one has already been mentioned:

1) ever growing command size due to regionalizaiton of GCMCAs. There is probably a lot of SPCM clemency action that goes on under the radar--though I admit I have not seen the breakdown of LT Marinello's research, but I assume the SPCMs he sampled were larger GCMs that convened SPCMs,

2) rank of the accused--something I have always espoused as a factor, which actually relates to factor no. 1, and

3) negative publicity about the case, which I will call the sphincter pucker factor. That is, how much has press coverage made the CA squeeze . . . you get the picture.

John O'Connor said...

No Man:

Do you really think CAs are more likely to give clemency BECAUSE of the rank of the accused, or is it more about the peripherals that generally come with the higher rank. I suspect it's the latter.

A higher ranking accused (particularly someone who is at or near a rank at which he could retire) has collateral effects coming with a conviction above and beyond the sentence itself. I could see a CA saying that such an accused has already lost a lot with a punitive discharge (such as a potential lifetime retirement pension) and that the CA could cut him some slack on confinement.

Also, higher ranking accuseds tend to be older, and therefore will tend to have more developed family situations. I could see a CA taking more pity on someone who has a wife and couple of kids to support as opposed to your standard E-1 drug pop.

Christopher Mathews said...

Although CAs probably do give considerable weight to the recommendations of their SJAs, I know of at least one who used to periodically grant relief for no reason at all: "I'm in a good mood today. Who can I give clemency to?"

That is, of course, his prerogative, but you have to wonder how much wisdom underlies a system where an otherwise equally-deserving candidate for clemency loses out because his package came up on a day the CA wasn't in a good mood.

Anonymous said...

I laugh every time I read a CCA or CAAF opinion that talks about the CA action as the "best opportunity for clemency." That is like saying that the 7-11 is my best opportunity to win the lottery. Well, maybe, but it isn't happening either way.

Mike "No Man" Navarre said...


I think rank is the unifying theme. Does a federal magistrate care if the Def were a great shop foreman at GM or if the Def could get fired from his job and lose his GM pension when he sentences him for drug distribution? Not so much. The difference is his rank matters is the military. Something magical happens to you when you become and E-7 (Navy only, I think it is E-6 for USMC). Even before that it means a lot more than being an E-1. Everyone has a family and a dog and a potential career. Now is that wrong since ye'ol
system is based on order and discipline? I still say it should not work like that, but I understand why it does. It's like, for example, a law firm that has two Associates commit some act that is detrimental to the firm's reputation. One is up for partner in 1-2 years and helped the firm retain some big clients, the other is a first year. Who might the firm can and who might they keep in a probationary status? I think c-m is different because it is the equivalent of a federal court and not a personnel decision, but a lot of CA's can't/don't make that distinction.

Guert Gansevoort said...

I would add that the legislative history of the UCMJ indicates that Congress was aware of the disparity between the punishment handed out to officers and enlisted for similar offenses, and sought to eleminate it. One amendment to the articles of war was the right to have a panel with enlisted representation. Nearly sixty years later, higher ranking accused are not brought to court-martial at all and, in the rare instances that they are brought to trial, they are afforded clemency for committing offenses for which their enlisted counterparts must wear the lasting badge of ignominy that is the punitive discharge. E-1's who are prosecuted for adultery have the same families that senior officers have. But they have never done carrier landings at the officers club with the convening authority.

Anonymous said...

We all know CA's rarely read clemency packages let alone grant them. This is particularly true if the CA is a GCMCA.

The SJA puts the ROT, SJAR, clemency, and a smooth (ready for signature) copy of the CA's Action in the CA's inbox. CA signs on the dotted line where the nice yellow adhesive arrow points. They may spend 30 seconds trying to figure out where to sign.