MJ clemency recommendation

On occasion, a military judge will make a clemency recommendation.

In United States v. Coleman, the military judge did just that.

“that the convening authority or any other authority has the authority to dismiss Specification 2 of Charge V, I recommend that such authority dismiss Specification 2 of Charge V.”

The defense raised this in their R.C.M. 1105 submission, but twice, the SJA failed to tell the CA about the recommendation.  The ACCA exercised its power under Article 66, UCMJ, and set-aside the finding of guilt.

Appellant was sentenced to 10 years and eight months confinement of part of the sentence.  Using its power to reassess sentence on appeal, the ACCA affirmed the 10 years and eight months confinement. United States v. Wincklemann, 73 M.J. 11 (C.A.A.F. 2013) and United States v. Sales, 22 M.J. 305, 307-08 (C.M.A. 1986), give a CCA the authority to reassess the sentence or remand for a new sentencing hearing.

In Winckelmann, the CAAF asks,

“did the United States Army Court of Criminal Appeals abuse its discretion by treating Appellant’s case on remand as “within the zone of Sales reassessment,” rather than ordering a rehearing? United States v. Moffeit, 63 M.J. 40, 44 (C.A.A.F. 2006) (Baker, J.,
concurring in the result). Second, to what extent, if at all, should courts of criminal appeals consider the factors identified in the concurring opinion in Moffeit when determining whether to conduct a sentence reassessment or, alternatively, order a sentence rehearing?

The Moffeit factors include, but are not limited to:

  • The CCA had extensive experience with similar cases.
  • The sentence was “well below the maximum” that could have been imposed.
  • The effect of a rehearing: cost, time, effect on witnesses having to be recalled.
  • [W]hether there are changes in the penalty landscape, including instances where charges with significant exposure or aggravating circumstances are taken off the table.
  • Was it members or MJA?
  • What is the nature and seriousness of any remaining offenses?
  • Did the CCA explain itself sufficiently?

Recently, the Navy-Marine Corps Court of Criminal Appeals reminded practitioners that members too may make a clemency recommendation.  See  United States v. Bannister, No. 201600056, 2018 CCA LEXIS 441 (N-M. Ct. Crim. App.)

The issue arose during sentence deliberations and a question from the members whether they could adjudge a punitive discharge but recommend it be changed to an administrative discharge.  The MJ simply told the members “No.”  The NMCCA ultimately held that it was OK for the military judge to tell them they could not recommend clemency.

Applying Perkinson, we concluded that the members’ single question about what might happen should they not award a punitive discharge, “did not trigger a requirement to give the clemency instruction.”  The appellant’s case is similar. Here, the members simply asked whether there was an “alternate option.”  After being told, “no” the members indicated that their questions were answered.  [H]ere the members’ single question about their discharge options did not trigger a sua sponte requirement for the military judge to instruct the members about recommending clemency. To be sure, the members’ question here was far less indicative of a desire on their part to recommend clemency than were the actions of the Perkinson members, who went so far as trying to award an administrative discharge by writing it into the sentencing worksheet. Yet, our superior court concluded such action “did not sufficiently raise the possibility that the members intended to recommend clemency.”  Because the appellant fails to show that the members intended to recommend clemency, we find no plain or obvious error in the military judge‘s failure to provide the members with a clemency instruction.