A Verdict Worthy of Confidence? Petitioning for a New Trial before Authentication Based on New Evidence

• Author: Major Michael R. Stahlman
• Pages: 04

2001] NEW TRIAL BEFORE AUTHENTICATION 161

A VERDICT WORTHY OF CONFIDENCE?1

PETITIONING FOR A NEW TRIAL BEFORE AUTHENTICATION

BASED ON NEW EVIDENCE

MAJOR MICHAEL R. STAHLMAN2

Our procedure has been always haunted by the ghost of the innocent man convicted.

It is an unreal dream.

-Judge Learned Hand3

Captain (CPT) Wood broke out in a cold sweat as he listened to the unfamiliar voice on the other end of the phone. He was overjoyed but

unsure what to do so he just took notes as he listened. He was speaking with the only eyewitness in a case CPT Wood thought was over more than a month ago. The eyewitness had not testified at trial and no one knew he even existed, until now.

Captain Wood defended the accused at trial. The victim was stabbed numerous times with a knife in a parking lot near a popular bar. The victim's identification of the accused at trial was the only evidence connecting the accused to the crime. From the day he was arrested and interrogated, the accused denied any involvement but acknowledged he was in the area of the assault at about the same time. The trial ended in a finding of guilty and a hefty sentence.

The eyewitness called because he saw an article in the local newspaper describing the facts of the trial and the result. He never came forward because he did not want to get involved. After several sleepless nights, he decided to call. What the eyewitness saw that night was exactly what the accused told CPT Wood. He did not know the accused, but he knew the real assailant very well and clearly saw him stab the victim multiple times. He remembered that night clearly. Stunned, CPT Wood hung up the phone. It seemed like an unreal dream . . . .

Captain Wood quickly regained his senses and cracked open his dog-eared Manual for Courts-Martial (MCM). In seconds he found Rule for Courts-Martial (RCM) 1210 in the index under "new trial" but saw that it did not apply until after the convening authority took action. After looking at case law, he became even more confused. Dismayed, CPT Wood asked himself, "Where do I go now?"4

1. Introduction

   As a whole, the military justice system is fair and effective.5 Although some commentators have expressed concern about certain aspects of the system, most believe it works.6 However, there will always be room for improvement.7 The fictional fact-pattern above depicts one such area. CPT Wood will soon discover he can submit a petition for a new

   trial to the military judge. However, he will also discover there is little case law to assist him on his "new trial" journey. Even worse, the case law that does exist lacks any meaningful guidance to practitioners in the field.8

   Applying RCM 1210(f) to new evidence discovered during this period-after trial and before authentication of the record of trial-is not the solution.9 It would be contrary to both the intent of the drafters of the UCMJ and the text of the current rule, and it has led to error in a large number of cases. In short, RCM 1210(f) should not be applied during this period because it will negatively impact upon the fairness of the military justice system.

   The accused carries a heavy burden when petitioning for a new trial based on newly discovered evidence.10 This is true even when the petition is filed before the convening authority takes action under RCM 1107.11

   Although the MCM does not address petitions filed before action is taken, military courts have looked to RCM 1210 for the standard to apply.12

   When a petition is submitted before authentication of the record of trial, the military judge has the authority to conduct a post-trial hearing.13

   After authentication of the record of trial, the convening authority has "[t]he power to order a rehearing, or to take other corrective action."14

   Regardless of when or to whom the petition is made, military appellate courts have consistently expressed the opinion that "requests for a new trial . . . are generally disfavored."15 This is for good reason. The cost, time, and effort associated with trying a case again can be enormous. However, these concerns must be balanced against the interests in guaranteeing an accused a fair trial.

   The current evidentiary standard for the decision to grant (or deny) a new trial can be difficult to apply since there has been little direction from military appellate courts. This has led to a wide variety of results. Despite the apparent confusion with application of the rule, military appellate courts have been reluctant to give clear guidance.16

   This article first examines the history of the new trial standard under Article 73 and RCM 1210(f). It then discusses the method by which the new trial standard is currently applied and the problems associated with its application. Next, the article shows that the drafters of the UCMJ did not intend the standard to apply before the convening authority's action, that courts in a significant number of cases have misapplied the standard, and that specific reasons have caused courts to misapply the standard. Finally, this article proposes a solution. It articulates why the proposed solution is

   better than the current standard, explains what military judges think of the solution, and explores potential problems with the change.17

2. Petition for a New Trial Standard: An Overview

   1. Origins of RCM 1210 and Legislative History

      The military justice system is unique.18 Its roots pre-date the Constitution by more than several centuries. However, only in the last half-century has it become more aligned with civilian criminal courts. Although there are critics on each side of the debate over the "civilianization" of the military justice system, all would agree that there has been a dramatic change in the system over the last fifty years.19 In a "due process" sense, this change has greatly improved the rights of an accused. The petition for new trial based on newly discovered evidence is just one of the many new rights codified following the end of the last World War.

      The end of World War II and the return of many who served in the armed forces during the war began a new period of reform in the military justice system. Many war veterans, disgruntled by their experience with the system, brought their concerns before Congress.20 The result was a code of military justice for all services and a manual for practitioners. Specifically, the new uniform code included Article 73, dealing with newly discovered evidence, which was applied through rules found in a manual

      for courts-martial. The rules eventually led to RCM 1210, the current provision for new trial petitions.

      Rule for Courts-Martial 1210 is based on paragraphs 109 and 110 of the 1969 Manual for Courts-Martial21 and Article 73 of the Uniform Code of Military Justice (UCMJ).22 The concept of a "new trial" based on newly discovered evidence first appeared in the Articles of War in 1949.23 That same year, the House Committee on Armed Services was holding hearings on the UCMJ. The major focus of the hearings was to produce a code that would apply to all the services.24

      The hearings show that Congress intended that the provisions of the code mirror practice in federal civilian courts.25 This included Article 73. One of the drafters of the code, Mr. Larkin, commented as follows:

      I think the newly discovered evidence will be surrounded by the practices and procedures in the Federal court that govern that motion [sic] such as-oh, that the newly discovered evidence is not cumulative; that if it had been presented to the jury it at least would have changed its mind; and various other rules that circumscribe the use of that type of motion.26

      A good example of this intent to mirror federal practice was the removal of the "good cause" requirement under Article 53 of the Articles of War. The purpose was two-fold. First, "good cause" had no counterpart in the civilian criminal system. Second, the drafters wanted an appellate system that was "tight, comprehensive and efficient."27 The "good cause" showing was too broad for the drafters. They wanted to limit the grounds for granting a new trial to cases involving fraud on the court or for newly discovered evidence. Otherwise, a petition could be filed for any purpose as long as there was a showing of good cause. This focus on fraud and newly discovered evidence as grounds for a new trial was consistent with civilian practice at the time.28

      The drafters were very concerned about the finality of courts-martial. They adopted the one-year requirement for submission of a new trial petition from Article 53, Articles of War (as amended in 1948). The concern was that, without an appropriate time limit, evidence and witnesses would be hard to obtain.29 This could be an unnecessary windfall for the petitioner and would not serve any valid purpose. In addition, the new one-year limit ran from the date of approval of the sentence by the convening authority. Under the Articles of War, the limit was for one year from final

      disposition of the case after initial appellate review. The drafters did not discuss the reasons for this change.

      One significant problem with Article 73 remains today. Neither Article 73 nor RCM 1210 address whether a new trial petition can be filed before the convening authority's action. The legislative history is also silent. The closest the drafters came to talking about the period from the end of trial to the convening authority's action was in their discussion of collateral attacks on a conviction.30 A related problem is the continuing use of the last sentence of the original Article 73. In short, the last sentence implies that a petition can only be made to the Judge Advocate General when the case is not pending before an appellate court.31 This adds to the confusion regarding when and to whom a petition may be made.

   2. The Current Rule

      Except for minor changes to the rule, grounds for a new trial based on newly discovered evidence have remained the same since the 1968 Military Justice Act.3...