Expanded Powers and Remedial Action

Overview of expanded powers and remedial action:

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1. United States v. Griffith, 27 M.J. 42 (C.M.A. 1988). “Consistent with our conclusion … that Congress intended for a military judge to have the power to conduct post-trial proceedings until authentication of the record has taken place, we are convinced that … before authenticating the record of trial … he may take remedial action on behalf of the accused without awaiting an order therefor by an appellate court.”

2. United States v. Scaff, 29 M.J. 60 (C.M.A. 1989). Article 39(a) empowers judge to convene post-trial session to consider newly discovered evidence and to take remedial action. This empowers the military judge, in proper cases, to set aside findings of guilt and sentence. If the CA disagrees, the only remedy is to direct trial counsel to move for
reconsideration or to initiate Government appeal.

3. United States v. Mahoney, 36 M.J. 679 (A.F.C.M.R. 1993). Chief Judge for Air
Force sixth judiciary circuit did not usurp power by convening a post-trial session to
inquire into possible improper command intervention after commander accused into
confinement, contrary to order of military judge after court-martial. Chief Judge did not
usurp power by reducing accused’s sentence by 18 months as remedy for commander’s

4. United States v. Meghdadi, 60 M.J. 438 (C.A.A.F. 2005). Military judge denied
defense request for a post-trial Article 39(a) based on newly discovered evidence,
specifically an audiotape. Accused’s conviction centered on distributing cocaine, based
on testimony by CID agent and CID informant. Defense argued at trial that CID agent
was trying to make several drug cases to advance his career and that the informant lied to
obtain a sentencing deal offered by CID. After the accused’s trial and during the CID
informant’s trial, an audiotape surfaced lending credence to the accused’s defense theory.
CAAF held the military judge abused his discretion by denying the Article 39(a) session
which resulted in prejudice to the accused because of the failure “to afford [the accused] a forum in which to make his case.” The CAAF stated “the [military judge] misapprehended the purpose of the Article 39(a) session, made factual findings that are
not supported by the record, applied an erroneous legal standard, misperceived the
evidentiary value of the audiotape, and made no record of any weighing of the new
evidence against the evidence at trial, either on the merits or in sentencing.”

5. United States v. Chisholm, 58 M.J. 733 (A. Ct. Crim. App. 2003), aff’d, 59 M.J. 151
(C.A.A.F. 2003). Military judges, as empowered by Congress and the President, have
both a duty and a responsibility to take active roles in “directing” the timely and accurate
completion of court-martial proceedings. After adjournment, but prior to authentication
of the record of trial, military judge must ensure that Government is proceeding with due
diligence to complete the record of trial as expeditiously as possible, given the totality of
the circumstances of that accused’s case. If the military judge determines that the record
preparation is proceeding too slowly, he may take remedial action without awaiting an
order from the intermediate appellate court. The exact nature of the remedial action is
within the sound judgment and broad discretion of the military judge, but could include,
among other things: (1) directing a date certain for completion of the record with
confinement credit or other progressive sentence relief for each day the record
completion is late; (2) ordering the accused’s release from confinement until the record of
trial is completed and authenticated; or, (3) if all else fails, and the accused has been
prejudiced by the delay, setting aside the findings and the sentence with or without
prejudice as to a rehearing. Staff judge advocates and convening authorities who
disregard such remedial orders do so at their peril.

6. United States v. Lepage, 59 M.J. 659 (N-M. Ct. Crim. App. 2003). Military judge
committed plain error by admitting record of Article 15 into evidence. He determined
that admitting the exhibit was erroneous in a post-trial 39(a) session, and that the
erroneously-admitted exhibit was considered by the court in arriving at a sentence.
However, military judge failed to take corrective action during that hearing, and
recommended that the convening authority disapprove the Bad-Conduct Discharge;
convening authority declined to follow recommendation. Held, “This case should not
even be before us for review . . . the military judge had the authority under RCM
1102(b)(2) to take corrective action.”

7. United States v. Pulido, No. 20011043 (A. Ct. Crim. App. Mar. 19, 2004) (unpub.)
Findings and sentence set aside due to lack of properly authenticated or approved
findings of guilty. Prior to authenticating the record, the military judge “corrected” her
original announced findings (Of all charges and specifications: Guilty) to partially reflect
the actual plea received in the case to one charge and its specification. The actual plea
received on one Charge was by exceptions and substitutions. The amended findings
neglected to reflect an announcement of guilt on a separate charge to which the accused
had pled guilty. “Article 53, UCMJ, and RCM 922(a) require that the court-martial
announce its findings to the parties promptly, in an open court, after they have been
determined” (emphasis in original). Because the verdict was ambiguous, there was
material prejudice to the accused’s substantial rights. Military judge’s options included:
reviewing tapes to determine whether she announced the reported findings; if record
inaccurately reported findings, she should not have authenticated it; returning record of
trial to trial counsel for further examination and correction; directing proceedings in
revision to correct error, so long as accused suffered no material prejudice.

8. Accused’s forum selection. Trial before military judge alone.

a. Request. RCM 903(b)(2). Trial by judge alone may be requested orally or
in writing by the accused. See also United States v. Wright, 5 M.J. 106 (C.M.A.
1978). Accused may withdraw request for good cause.

(1) Doctrine of Substantial Compliance. United States v. Mayfield, 45
M.J. 176 (C.A.A.F. 1996). The absence of a written or oral request for
trial by military judge alone did not establish a substantial matter leading
to jurisdictional error based on the dialogue at trial, the absence of a
defense objection, and accused’s post-trial Article 39(a) confirmations of
his desire to be tried by judge alone. A post-trial session is permissible
to cure jurisdictional errors created by the failure to obtain an accused’s
request for trial by military judge alone. Conviction affirmed.

(2) United States v. Turner, 47 M.J. 348 (C.A.A.F. 1997). A written
request for trial by military judge alone, which counsel made and
submitted before trial, and then confirmed orally at an Article 39a
session with the accused, present substantially complies with Article 16,
UCMJ. While the military judge erred in failing to obtain an oral
statement of selection of the forum from the accused, the error did not
materially prejudice the accused.

(3) United States v. Seward, 49 M.J. 369 (C.A.A.F. 1998). An accused’s
forum request from a previous court-martial that was terminated by
mistrial cannot be used to support a forum request at a subsequent court-
martial. However, accused suffered no prejudice under Article 59
because his request for trial by military judge alone was apparent from
the pretrial agreement (forum selection was a term), and there was a
written request for the same even though offered after completion of the
sentencing proceedings.

(4) United States v. Alexander, 61 M.J. 266 (C.A.A.F. 2005). Military
judge advised the accused of his forum selection rights, which accused
requested to defer. During a later proceeding, military judge stated that
he was told an enlisted panel would be hearing the case and defense did
not object. The accused, however, failed to state in writing or on the
record his request for enlisted members in violation of Article 25, UCMJ
and RCM 903(b)(1). The CAAF held that the error in the accused failing
to personally select forum on the record is a procedural, as opposed to
jurisdictional, issue. The court stated “[the] right being addressed and
protected in Article 25 is the right of an accused servicemember to select
the forum[,] . . . [t]he underlying right is one of forum selection, not the
ministerial nature of its recording.” The CAAF held that the record
reflected that the accused selected court-martial by panel members and
the accused failed to show that the error in recording his forum selection
resulted in any prejudice.

(5) United States v. Goodwin, 60 M.J. 849 (N-M. Ct. Crim. App. 2005).
Accused failed to state in writing or orally on the record his request for a
judge alone trial as required by Article 16, UCMJ. Military judge failed
to advise the accused of his forum rights and the only evidence of his
intent existed was a single sentence in the pretrial agreement, to request
trial by judge alone (a term the military judge failed to discuss with the
accused). N-MCCA held the failure to advise the accused of his forum
rights did not substantially comply with Article 16, UCMJ, and found the
error was not harmless. Findings and sentence set aside.

(6) United States v. Follord, No. 20020350 (A. Ct. Crim. App. Feb. 15,
2005) (unpub). The accused, a CW2, did not make a knowing and
voluntary waiver of his statutory right to trial by five officer members
because of the following errors: (1) his executed PTA erroneously listed
one of his three forum options as a trial by one-third enlisted, (2) his
request for military judge alone stated that any trial composed of officers
would be “not of his unit,” and (3) military judge advised the accused
that if he requested officer members at his general court-martial that the
panel must comprise “at least three members.” The court stated the host
of errors “constitutes a lack of substantial compliance with Article 16,
UCMJ.” Findings and sentence set aside.

b. United States v. Jungbluth, 48 M.J. 953 (N-M. Ct. Crim. App. 1998).
Accused pled guilty to wrongful use of marijuana on divers occasions before a
properly assemble court consisting of a panel of officer members. A military
judge was forced to declare a recess after the TC became ill. At the next session
of court the parties presented the military judge with a PTA. Under the PTA, the
military judge dismissed the officer panel, conducted a providence inquiry,
entered findings, and adjudged a sentence. A military judge can lawfully
approve a request for trial by military judge alone after assembly if justified by
the circumstances. RCM 903 does not expressly prohibit approval of after
assembly forum requests, and in this case, military judge approved the request
under the terms of a pretrial agreement. The agreement was mutually beneficial
to both sides and the accused suffered no prejudice.

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c. A Right?

(1) United States v. Ward, 3 M.J. 365 (C.M.A. 1977). There is no right
to a judge alone trial. But see United States v. Butler, 14 M.J. 72
(C.M.A. 1982) (military judge must state reason for denial of judge alone

(2) United States v. Webster, 24 M.J. 96 (C.M.A. 1987). Denial of a
timely motion for trial by judge alone cannot be based on judge’s desire
to discipline counsel nor to provide court members with experience.

(3) United States v. Edwards, 27 M.J. 504 (C.M.A. 1988). Once
military judge ruled he was not disqualified from hearing case, he abused
his discretion by denying accused right to trial by judge alone, as

(4) United States v. Dodge, 59 M.J. 821 (A.F. Ct. Crim. App. 2004),
rev’d on other grounds, 60 M.J. 368 (C.A.A.F. 2004) (holding RCM
903(c)(2)(B) does not create a “concomitant absolute right” to be tried by
military judge alone).

d. Replacement of military judges – RCM 505(e)(2)United States v. Kosek,
46 M.J. 349 (C.A.A.F. 1997). The Air Force did not violate a CAAF remand
order by substituting a new military judge at accused’s court-martial after the
CAAF ordered that the record be returned to the “military judge” for reconsideration.


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