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A Good Sentencing is Necessary for Damage Control After a Conviction

In the military, if you are found guilty the sentencing phase of the trial will start immediately. The military is not like the civilian community where it may be weeks or months before a person convicted is then sentenced. That means, unfortunately, that you and your military defense lawyer must prepare for sentencing at the same time you are preparing for the merits (guilt) phase of trial.

The October 2018 decision of the Army Court of Criminal Appeals in United States v. JAS. reminds us of the importance of a sentencing case.

But First, Some General Thoughts on Sentencing

A well prepared trial sentencing case is obviously very important, especially because of recent changes to the UCMJ and the new limitations on the convening authority's (CA) clemency power. No longer can an accused rely on the possibility that a CA will reduce the sentence as an act of clemency. The almost 60 years of CA clemency power is dead. No longer should you expect to see that,

It has long been asserted that an accused's best chance for post-trial clemency is the convening authority.

United States v. Wheelus, 49 M.J. 283, 287 (C.A.A.F. 1998).

Keep in mind that the court of criminal appeals retains its power under Article 66(c), UCMJ, to determine whether or not the sentence imposed is appropriate. So, a sentencing case is important during an appeal where you might get some damage control.

Appellate courts, of course, do not have clemency powers, per se, that being an Executive function reposed, in the first instance, in the convening authority. Still, the Courts of Criminal Appeals have broad power to moot claims of prejudice by "affirming 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."

Id. at 288.

Clemency and Parole remains alive through the Service clemency and parole boards and Secretarial power through Article 71, UCMJ. Keep in mind that the C&PB will review the record of trial as well as other documents related to post-trial service and or confinement. So, the more "clemency" information in the record of trial the better the chance of an early release from confinement. The trial itself may be over when the judge slams the gavel, but the opportunity for damage control continues.

In United States v. DeMerse, 37 M.J. 488 (C.M.A. 1993), the court emphasized the importance of a sentencing case, especially where the appellant had "nearly 18 years in the Navy. Those years were honorable service, much of it at sea." Among DeMerse's records was information that "include two Good Conduct Medals, the Sea Service Deployment Ribbon (with 3 stars), the Vietnam Campaign Ribbon, the Vietnam Service Ribbon, the Combat Action Ribbon, and the National Defense Service Medal." Id.

Service in Vietnam carries special distinction. Such service is even more noteworthy today, some 20 years after the cessation of hostilities in Vietnam, as it is becoming increasingly rare to find servicemembers on active duty with Vietnam service. Awards received as a result of Vietnam service are likewise viewed as important statements about a soldier's or sailor's character.

Id. at 493.

DeMerse can be analogized to a failure to offer and consider service in Iraq or Afghanistan, or similar difficult deployments.

In United States v. Wheelus, 49 M.J. 283 (C.A.A.F. 1998), the court took another opportunity to remind counsel about sentencing matters. (The Military Judge's Benchbook contains a Wheelus instruction.)

Now to United States v. JAS

Major JAS also claims his defense counsel, Captain (CPT) JH and CPT MD, provided grossly ineffective assistance in preparing and conducting his sentencing case. Major Scott’s second claim has some merit. Perhaps unusually, the best evidence of counsels’ deficient performance is contained in the affidavits submitted by the government.

Slip op. at 2. What did the DC's say to cause such a comment from the court?

In affidavits submitted on appeal, CPT JH and CPT MD express shock that the court-martial adjudged a dismissal. Captain JH describes the sentence as “ludicrous” and “unconscionable.” Captain MD similarly describes MAJ JAS's sentence of a dismissal as “unconscionable” and an “absurdity.” Reading their affidavits, one cannot help but conclude that counsel prepared for the court-martial under the grossly mistaken belief that a dismissal was not a plausible outcome. Our conclusion that the defense team prepared for a trial based on the assumption that a dismissal was not a plausible sentence is not merely based on our informed inferences. In his affidavit CPT MD states, “I believed the odds of a punitive discharge at this court-martial were so unlikely that the main concern for us going into pre-sentencing was hoping to prevent MAJ Scott from serving time in confinement.” The pretrial agreement in the case capped confinement at 119 days.

According to CPT MD, the focus of the defense sentencing case was whether MAJ JAS would serve less than 119 days confinement, not on whether he would be dismissed and lose a pension and all the associated benefits that flow from being a military retiree.

That a dismissal was a plausible sentence should have been obvious.

Slip op. at 5. Regrettably I have seen and heard defense counsel say something like this to the client before trial.

What Could They Have Done?

According to the court they didn't offer any documents from the service record, offer written statements of people who had known him before his current assignment.

We Know This Because

After the sentence was announced, what was not done at trial was later done as part of appellant’s R.C.M. 1105 submission. Captain MD submitted hundreds of pages of documents for post-trial consideration. Several letters of support were submitted. Medical documents were prepared and provided to the convening authority for consideration. Major Scott’s post-trial submission lands on our desks with twice the thickness of the trial transcript and all exhibits combined. It was not too little, but it was too late. Even were he so inclined, the convening authority was not empowered to set aside appellant’s dismissal under Article 60, UCMJ.

Id. at 7.

Note my comment at the beginning about limitations on the CA clemency power, which should have been known to the military defense counsel.The defense counsel later claimed that it was a military judge alone case and so, for example, “[they] believed that the information MAJ Scott could provide the court [in his unsworn statement] and his extensive deployment record documented on his ORB would suffice for pointing to his service record knowing the case was before a military judge alone.” Slip op. at 10.

Don't do That. A MJA Sentencing Case Should be as Robust as for Members

Remember my note above about clemency and parole.

Don't Rely on Getting Everything Through an Unsworn Statement; as the Court Suggests

[T]here is danger in relying on an unsworn statement to put facts before the court-martial. The statement is not under oath and it is not subject to adversarial testing. While the court-martial must consider an unsworn statement, the court may give it less weight simply because it is unsworn. True, [Appellant] discussed some of his deployments during his unsworn statement. However, when an accused is asked to give an unsworn statement as to his own heroics, the unsworn statement may be viewed less credibly. This is especially true when the claim of heroics is not supported by awards, witnesses, or other confirmatory evidence.

Slip op. at 11.Work with your military defense lawyer to gather as much information as possible to help with sentencing: witnesses (either in person or by Affidavit, service records, civilian records). Take an interest in your case and situation and help the military defense lawyer gather evidence that can be used in damage control if convicted.

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