What are Post-Trial Clemency Petitions?
Clemency petitions are submitted by an accused after court-martial seeking disapproval of adjudged findings and/or sentence. The petitions are normally submitted by defense counsel on behalf of the accused to the convening authority. These post-trial actions are a last attempt to seek reconsideration of a guilty finding to a particular charge or alternatively lenience with respect to some portion of an imposed punishment after trial.
The military justice system is a commander-driven system.
Cases sent to trial by court-martial must be referred by the appropriate convening authority. These authorities are normally referred to as the General Court-Martial Convening Authority (GCMCA) when dealing with a general court-martial and a Special Court-Martial Convening Authority (SPCMCA) when dealing with a straight special court-martial or one empowered to adjudge a Bad-Conduct Discharge (BCD).
After trial by court-martial, the court’s judgment with respect to any guilty finding and the adjudged sentence must be submitted to the convening authority for approval or disapproval. Approval or disapproval may be in whole or in part. However, a convening authority cannot enhance an accused’s guilt or punishment. He can only sustain or lessen these findings. This determination, known as taking final action in a case, is completely within the convening authority’s sole discretion.
Prior to final action, a record of the court-martial proceedings is prepared for review by the parties, to include the government and defense. This is called a record of trial. Both sides are afforded equal chance to review the record of trial for accuracy before it is finalized and submitted to the convening authority. If inaccuracies exist in the record, the parties may submit suggested changes or corrections to errors contained therein known as errata. Once the errata are corrected, the military judge who presided over the trial finalizes and certifies the accuracy of the record. A certified copy of the record is then served on the accused normally through defense counsel for his or her final review. Once received, the accused then has a limited period of time to submit a clemency petition or request.
An accused has ten (10) days to submit a clemency petition after being served with a certified copy of the record of trial. An accused may request an extension for up to twenty (20) days. However, these requests must be in writing, set forth a reason or factual basis for the extension request, and submitted to the convening authority for approval.
The right to request clemency in the military justice system is absolute
This means that an accused may seek clemency in cases both where there was a guilty plea, or alternatively, after a contested trial with a guilty finding or verdict. Clemency petitions may ask the convening authority to disapprove any portion of the guilty findings and/or sentence. Clemency requests may be based on information contained in the record of trial or any other matters or materials that an accused submits on his behalf for the convening authority’s consideration.
Clemency requests must be in writing. An accused may submit any written matters for the convening authority’s consideration and may raise anything in the clemency request that may reasonably affect the convening authority’s final action in the case. This includes legal issues that have merit and may warrant relief on appeal, excluded evidence at trial, previously unavailable mitigation evidence, clemency recommendations by the chain of command or panel, statements of support, letters, statements by the accused and any other matters of extenuation and mitigation.
Clemency requests should be carefully prepared with a clear strategy in mind
An accused is not likely to convince a convening authority, after pleading guilty or being found guilty after a contested trial, to disapprove the guilty finding or any and all portions of a sentence. A focused strategy in clemency may entail requesting disapproval of some portion of a guilty finding, or alternatively, disapproval of some term(s) of the adjudged sentence. Formulating and adhering to a focused post-trial strategy will form the initial framework for the accused and counsel to then plan and prepare a clemency petition with a maximum chance of success. It is important to have experienced defense counsel assist you in this process.
An accused is entitled to the assistance of counsel with clemency requests
The accused may utilize the services of detailed military defense counsel for this purpose or retain civilian counsel at his or her own expense. Civilian counsel may assist with a clemency petition even in cases where the accused was represented by military defense counsel at trial by court-martial.
If you pleaded or were otherwise found guilty after trial by court-martial, you are entitled to submit a clemency petition.
Do not squander or underestimate this final opportunity to minimize your guilty findings and/or punishment. Clemency affords you one last bite at the apple before the convening authority takes final action in your case. The final action will either approve or disapprove the findings and sentence in part or in whole. Take hold of this important right and opportunity by ensuring you are represented by experienced military defense counsel throughout the clemency process.
If you were convicted at trial by court-martial and require legal assistance with your clemency petition, call Civilian Military Defense Attorney John L. Calcagni III, Esq. for a free consultation today at 401-351-5100.