CHAPTER 8 POSTTRIAL DUTIES AND THE REVIEW PROCESS

As an LN, it is important that you know something about the mechanics of court-martial reviews. This chapter prepares you for your court-martial posttrial duties, with the exception of transcription of the record of trial, from the time the trial adjourns until final disposition of the case.

Topics covered in this chapter are the preparation of the results of trial, confinement orders, the review process including the preparation of the staff judge advocate's (SJA's) recommendation, the convening authority's (CA's) action, promulgating orders, and required service record entries.

POSTTRIAL ADMINISTRATIVE DUTIES

There are numerous duties that must be completed at the conclusion of any trial by court-martial. In this section we will discuss the preparation of results of trial, confinement orders, restriction, and extra duty orders. We will also discuss the deferment process of a sentence to confinement and what your role will be in this process.

Other posttrial duties include the preparation of the SJA's recommendation, sending the SJA's recommendation to the accused and the detailed defense counsel (DC), preparation of the CA's action, and preparation of the promulgating order and required service record entries. These issues will be addressed in the order in which they occur in the court-martial process.

REPORT OF RSULTS OF TRIAL

Immediately following final adjournment of a court-martial, the trial counsel (TC) has a duty to notify the accused's immediate commander, the CA, or the CA's designee of the results of trial. Additionally, if the sentence includes confinement, the notification must be in writing with a copy sent to the commanding officer (CO) or the officer in charge (OIC) of the brig or confinement facility concerned.

A locally prepared form similar to that illustrated in figure 8-1 may be used for this purpose. The form should contain sufficient information to identify the

accused, show the findings and sentence, and the disposition of the accused after trial.

Distribution requirements for the report of results of trial include original to the CA; one copy to the CO of the accused (if different); one copy to the CO or OIC of the brig (if confinement is adjudged); one copy for the record of trial; and one copy for the officer exercising general court-martial jurisdiction (OEGCMJ).

POSTTRIAL CONFINEMENT

An accused maybe placed in posttrial confinement if the sentence adjudged includes death or confinement. The confinement portion of a sentence runs from the date the sentence is adjudged.

Who May Order Confinement

Unless limited by a superior commander, a commander of the accused may order the accused into posttrial confinement when it is adjudged. A commander authorized to order posttrial confinement may delegate this authority to the TC. Normally the TC will prepare and sign the confinement order by the direction of the accused's CO.

Confinement Order

As a matter of policy, no member of the Navy may be confined without a written confinement order. The Confinement Order, NAVPERS 1640/4, is the document used to satisfy this requirement.

Upon notification from the TC of the results of trial, the accused's CO must take prompt and appropriate action with respect to the restraint of the person tried. If the accused has requested deferment of service to confinement and the request is approved by the CA, no confinement order is prepared at this time. However, if there is no deferment request by the accused, the TC will prepare a confinement order signing it by direction of the CA.

Distribution requirements for the confinement order include sending at least three copies with the package to the brig or confinement facility. You should inquire into the actual number of copies required by the brig your

Figure 8-1-Report of results of trial.

command uses. Figure 8-2 illustrates a completed confinement order.

Deferment of Confinement

Deferment of a sentence to confinement is a postponement of the service and of the running of confinement. The deferment is not a form of clemency and is considered only upon written application by the accused. If the accused requests deferment, the deferment may be granted any time after the adjournment of the court-martial, as long as the sentence has not been executed. If the deferment request is used to carry out the intent of a pretrial agreement (PTA) term suspending all confinement, the accused may submit the request along with the PTA. The CA may sign both documents at the same time and this maybe done before the trial.

Figure 8-2.-Confinement Order, NAVPERS 1640/4.

WHO MAY DEFER.- The CA or, if the accused is no longer under the CA's jurisdiction, the OEGCMJ over the command to which the accused is assigned may, upon written application of the accused, defer the sentence.

ACTION ON DEFERMENT REQUESTS.- The authority acting on the deferment request may, in that authority's discretion, defer service of a sentence to confinement. The decision to defer is a matter of command discretion. The accused has the burden to show that both the interests of the accused and the community in release outweigh the community's interest in confinement. Factors that the authority acting on a deferment request may consider in determining whether to grant the deferment request include the following:

The chance of the accused's flight

The chance that the accused may commit other offenses, intimidate witnesses, or interfere with the administration of justice

The nature of the offenses (including the effect on the victim) of which the accused was convicted

The sentence adjudged

The command's immediate need for the accused

The effect of deferment on good order and discipline in the command

The accused's character, mental condition, family situation, and service record

Although the decision to grant or deny the deferment request falls within the CA's sole discretion, that decision is subject to judicial review only for abuse of discretion. The action of the CA in granting or denying the accused's application for deferment is a written docurment of which a copy is provided to the accused.

RESTRAINT WHEN DEFERMENT IS GRANTED.- No form of restraint or other limitation on the accused's liberty is authorized as a substitute for the deferred confinement. The accused may, however, be restrained for an independent reason; for example, pretrial restraint resulting from a different set of facts in which disciplinary action is anticipated.