United States v. Engler ( 2014 )

CCA 201300365. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals and the record of trial, the- Court notes a number of errors in the post-trial processing of this case and decision of the lower court: (1) the civilian defense counsel advised the staff judge advocate that'he would not submit clemency matters, but then submitted clemency matters several weeks after the convening authority took his initial action; (2) the convening authority purported to take a second action after he forwarded the record to the lower court and thereby lost jurisdiction in the case; (3) the convening authority failed to include the clemency matters in the record; (4) the lower court failed to order the government to produce the missing clemency submission; and (5) the lower court found a legal basis for a conclusion of no prejudice in the second action despite that action being a legal nullity. Accordingly, it is ordered that said petition is hereby granted on the following issue:

CAN A MILITARY APPELLATE COURT USE AN UNLAWFUL CONVENING AUTHORITY’S ACTION TO NEGATE PREJUDICE WHEN TESTING FOR INEFFECTIVE ASSISTANCE OF COUNSEL DURING POST-TRIAL CLEMENCY PROCESSING?

The decision of the United States Navy-Marine Corps Court of Criminal Appeals is reversed, and the convening authority’s actions are set aside. The record of trial is returned to the Judge Advocate General of the Navy for submission to an appropriate convening authority for a new recommendation and action. Thereafter, Articles 66 and 67, Uniform Code of Military Justice, 10 U.S.C. §§ 866 and 867 (2012) shall apply.