800-pound gorilla–Not!

In a number of cases Judge Wiss made the statement about the CCA’s that

"[T]here are some places where even ‘the proverbial 800-pound gorilla’ is not free to roam."

See e.g., United States v. Parker, 36 M.J. 269, 273 (C.M.A. 1993)(citing United States v. Bethea, 22 U.S.C.M.A. 223, 46 C.M.R. 223 (1973)) (Wiss, J. concurring).

It does not appear they feel free to roam into reductions of sentence for inappropriateness reasons.  CAAFLog reports that the new Air Force Law Review is out (I don’t see it at www.afjag.af.mil/library/ yet).  The relevant military justice piece is summarized by DMLHS as follows.

The issue includes Lt Col Jeremy Weber’s Herculean review of every online opinion from all four CCAs over a five-year period to study the exercise of their sentence appropriateness power.  Lieutenant Colonel Jeremy Stone Weber, Sentence Appropriateness Relief in the Courts of Criminal Appeals, 66 A.F. L. Rev. 79 (2010).  Among his interesting findings was that over the five-year period, the four CCAs combined provided relief on the basis of sentence comparison in a grand total of one case.  See United States v. Lambert, No. NMCCA 200401410 (N-M. Ct. Crim. App. Nov. 27, 2006).  Here are the stats on the number of times the CCA found a sentence inappropriately severe over those five years:  ACCA–0; NMCCA–6; AFCCA–11; CGCCA–2.  There were several additional cases in which CCAs granted Tardif relief for unreasonable post-trial delay without regard to prejudice or in the absence of prejudice:  ACCA–11; NMCCA–37; AFCCA–4; CGCCA–5.

I haven’t done the stats, but I would suspect the Coast Guard figure to be the most meaningful.  They have so few cases and thus so few appellate cases that their “2” will represent a higher percentage success rate than say the USAF.  For those who argue in favor of removing what they term clemency power from the CCA’s the figures seems to support the argument that having the power is meaningless.  But also supports the argument that the CCA’s aren’t running rampant setting aside sentences willy-nilly as others argue.

For the trial defense counsel these numbers have clear implications.  You also should be clear with the client, using the figures if necessary, their likelihood of success on appeal in getting a sentence reduced.

In United States v. Cole then Judge Cox summarized the CCA powers under Article 66(c), UCMJ.

In a case referred to it, the Court of Military Review may act only with respectto the findings and sentence as approved by the convening authority. It may affirm only such findings of guilty and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved. In considering the record, it may weigh the evidence, judge the credibility of the witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses.  (Emphasis added.)

This awesome, plenary, de novo power of review grants unto the Court of Military Review authority to, indeed, "substitute its judgment" for that of the military judge. It also allows a "substitution of judgment" for that of the court members. In point of fact, Article 66 requires the Court of Military Review to use its judgment to " determine[], on the basis of the whole record" which findings and sentence should be approved.

Oh, the gorilla in the room —

In United States v. Parker, 36 M.J. 269, 271 (C.M.A. 1993), Judge Cox described the same CCA as “something like the proverbial 800-pound gorilla when it comes to their ability to protect an accused.”  I should note that the newer Navy appellate defense may not be so fond of the gorilla analogy as we were. “Whether our powers are equated to an 800-pound gorilla, or that of "a big bear of a Court," as used by appellate defense counsel[.]  United States v. Reed, 51 M. J. 559, 565 n.4 (N-M. C. Ct. Crim. App. 1999).

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