La. Admin. Code tit. 41 § II-616

Current through Register Vol. 50, No. 8, August 20, 2024

Section II-616 - Sentence

A. General. When the court returns a finding of not guilty, the accused is acquitted and the proceedings terminate. When the court returns a finding of guilty, the court-martial proceeds to the sentencing phase. During the sentencing phase, the trial counsel has the first opportunity to present the "case in aggravation." Then the defense counsel has an opportunity to present a "case in extenuation and mitigation." Thereafter, counsel for both sides present their case in rebuttal and surrebuttal as appropriate. At the conclusion of the evidence and counsel arguments, the military judge announces the sentence (or, in a case with members, instructs members who then deliberate, vote, and announce their sentence).

B. The Case in Aggravation. The trial counsel's case in aggravation consists of matters which the sentencing authority may consider in arriving at an appropriate sentence. These matters can be presented by the trial counsel, and can be considered by the sentencing authority, regardless of what defense counsel decides to present during the case in extenuation and mitigation. The government's right to present presentencing evidence is the same in a contested case as it is in a guilty plea case. The M.R.E.. are not relaxed for the government during the case in aggravation, which necessitates that data must be properly authenticated and satisfy the requirements regarding hearsay testimony, if applicable. The case in aggravation consists of five enumerated categories of information:

1. Service data relating to the accused taken from the charge sheet concerning the accused's pay, time in service, and prior restraint. This information should be verified for accuracy with defense counsel. This may be read orally into the record. [See R.C.M. 1001(b).]

2. Previous convictions, military or civilian. Unless stipulated, documentary evidence used to prove a conviction must be properly authenticated. Courts-martial result in a "conviction" once sentence is adjudged in the case. To determine whether a civilian adjudication has resulted in a criminal conviction, refer to the law of the civilian jurisdiction where the proceeding took place. A juvenile adjudication is not a conviction for these purposes. The conviction must antedate the commencement of the presentencing proceeding in which it is offered; however, with the exception of SCM convictions, there is no requirement that the conviction be "final" to be admissible. [See R.C.M. 1001(b)(A).]

3. Personal data and character of prior service of the accused. Trial counsel may present to the military judge copies of any personnel records that reflect the past military efficiency, conduct, performance, and history of the accused, prepared and maintained according to departmental regulations. [See R.C.M. 1001(b).]

4. Matters in aggravation. The trial counsel may present evidence directly related to the circumstances surrounding the offense and evidence concerning the repercussions of the offense. It must be in a form admissible under the M.R.E.. (e.g. relevant, non hearsay, properly authenticated, etc.) and must satisfy the balancing test of M.R.E.. 403 (i.e. probative value outweighs prejudicial effect). [See R.C.M. 1001(b).]

5. Opinion evidence of rehabilitative potential and past duty performance. Any opinion testimony should be based on personal observation, but may also be based on reports and other information provided by subordinates. The government cannot use this as an opportunity to influence the court to punish the accused by imposing a punitive discharge. Also, the trial counsel cannot explore specific incidents of misconduct during direct examination, but if defense counsel "opens the door" by inquiring specific instances of conduct during cross-examination, redirect examination on that subject is appropriate. The military judge has broad discretion in limiting collateral inquiries into specific instances of conduct.

C. The Case in Extenuation and Mitigation. Matters in extenuation are those matters which serve to explain the circumstances surrounding the commission of an offense. Mitigation evidence relates to the accused's character and those aspects or the individual which indicate that sentence leniency is warranted. [See R.C.M. 1001(c).] The rules of evidence are generally relaxed for the defense presentation of the case in extenuation and mitigation. The military judge has discretion in relaxing the rules of evidence, but should not admit any evidence that is irrelevant or has no indicia of reliability. The military judge should personally advise the accused of the right to present matters in extenuation and mitigation including the rights of allocution. [See R.C.M. 1001(a).] The accused may make a sworn statement, an unsworn statement, both, or remain silent. If the accused makes a sworn statement he may be cross-examined. His unsworn statement is not subject to cross-examination, but may be rebutted by the government by independent evidence.

D. Other Factors Which May Be Considered on Sentencing.

1. Plea of Guilty. It is appropriate to consider that a guilty plea usually saves the government time, effort, and expense.

2. Time Spent in Pretrial Confinement. The accused is entitled to credit for time served in pretrial confinement. [See R.C.M. 305(k).]

3. The Accused's False Testimony on the Merits. The court-martial may consider the accused's mendacity as bearing on rehabilitative potential during sentencing if it concludes that the accused willfully lied about a material matter.

4. The Accused's Absence from Trial. If the accused is tried in absentia, the sentencing authority may consider the accused voluntary absence as an indication of rehabilitative potential.

5. Administrative Consequences of a Sentence. Command policies and directives regarding the disposition of offenders or directives impacting on the military corrections system are not appropriate sentencing factors, however, the sentencing authority may consider that a punitive discharge deprives an individual of substantially all benefits administered by the Department of Veterans' Affairs.

6. Purposes of Sentencing. The sentencing authority must consider that the principal reasons for adjudging a sentence are:

a. protection of society from the wrongdoer;

b. punishment of the wrongdoer;

c. rehabilitation of the wrongdoer;

d. preservation of good order and discipline in the military; and,

e. deterrence of the wrongdoer and those who know of his crime and sentence from committing the same or similar offenses.

E. Permissible Punishments by Courts-Martial. See Figure 6-2.

F. Reconsideration of Sentence. The sentencing authority may reconsider a sentence with a view towards decreasing it anytime before the record of trial is authenticated. [R.C.M. 1009(b).]

G. Defective or Illegal Sentence. After sentence is announced, the military judge can seek a clarification of the ambiguity or illegality of a sentence any time prior to adjournment. [R.C.M. 1009(c)(B).] After the case is adjourned, the military judge may initiate a reconsideration proceeding but only with a view to clarifying or decreasing the sentence; the convening authority can order a proceeding to seek clarification; or the convening authority can approve the lowest legal, unambiguous sentence adjudged. [R.C.M. 1009(c).]

H. Suspension of Sentences. The military judge, summary court martial officer, or the convening authority may suspend execution of any sentence. [LCMJ Article 71(B).] No penalty or sentence may be suspended beyond a reasonable period. The suspension period cannot extend beyond the expiration of an enlisted accused's present term of service, and is subject to the following maximum periods:

1. 12 months for a SCM;

2. 18 months for a SPCM;

3. 24 months for a GCM.

I. Sample Notice of Court-Martial (Accused) (Figure 6-1)

[UNIT HEADING]

LANG-BDE-SJA DATE

MEMORANDUM FOR: SPC JOHN DOE, 400-00-0000, 1234 Elm Street, Anywhere, LA 70000

SUBJECT: Notice of Court-Martial

You are hereby furnished a copy of the charge sheet for which a Special Court-Martial was ordered on this date.

You are directed to appear at the Special Court-Martial entitled STATE OF LOUISIANA versus SPC JOHN DOE to be conducted at 1000 hours, 21 Sep 91, in the 199th Support Battalion Armory located at Alexandria, Louisiana. You are ordered to appear at 0800 on that date in Class A uniform. FAILURE TO APPEAR WILL RESULT IN ISSUANCE OF A BENCH WARRANT FOR YOUR ARREST.

CPT HUNT DOWNER has been appointed as your military defense counsel and will be present at your court-martial. It is your responsibility to contact CPT DOWNER as soon as possible during normal business hours at (504) 876-5432. You have a right to retain civilian counsel of your own choosing and at your own expense if you so elect. If you intend to be represented by a civilian counsel, you should make arrangements to have that attorney present with you at the court-martial. CPT DOWNER will be present to assist you regardless of your decision concerning hiring civilian counsel.

If you have witnesses in your defense, you must immediately provide the full name(s), home and work address(es) to your defense counsel so that subpoenas may issue. Your failure to take immediate action in this regard will not be grounds for a postponement of your Court-Martial. It will not be necessary for your witnesses to appear in Class A uniform.

Any questions concerning the content of this notice may be directed to the undersigned at (318) 765-4321.

GLENN GREMILLION

CPT, JA

Trial Counsel

CF: Military Judge

Staff Judge Advocate, 256th Bde

Defense Counsel

Office of the State Judge Advocate

S-1, 199th Support Battalion

NOTE: This Notice, which may be tailored to meet existing conditions and requirements, should be hand-delivered or, if that is not possible, mailed CERTIFIED MAIL, RETURN RECEIPT REQUESTED

J. Court Martial Maximum Punishment Table (Figure 6/2)

1. This table reflects recent changes in Louisiana law that became effective on 1 JUL 07.

General Court-Martial (LCMJ Article 18)

A fine of not more than one thousand dollars ($1,000.00);

Forfeiture of pay and allowances;

A reprimand;

Dismissal, bad conduct, or dishonorable discharge;

Reduction of a noncommissioned officer to the ranks;

Confinement of not more than two years; or

Any combination of these punishments.

Special Court-Martial (LCMJ Article 19)

A fine of not more than $200;

Forfeiture of pay and allowances;

A reprimand;

Bad conduct discharge or dishonorable discharge;

Reduction of a noncommissioned officer to the ranks;

Confinement of not more than 12 months;

Any combination of these punishments.

Summary Court-Martial (LCMJ Article 20)

Confinement of not more than one week;

Reduction of enlisted personnel to the lowest grade;

A fine of not more than one hundred dollars ($100.00);

Forfeiture of up to one month pay and allowances;

A reprimand; or

Any combination of these punishments.

K. Sample Notice of Court-Martial (Participants) (Figure 6-3)

[UNIT HEADING]

LANG-BDE-SJA DATE

MEMORANDUM FOR: CPT Courageous, 123 Main Street, Houma, LA 70360

SUBJECT: Notice of Court-Martial

A Special Court-Martial entitled STATE OF LOUISIANA versus SPC JOHN DOE to be conducted at 1000 hours, 21 Sep 2008, in the 199th Support Battalion Armory located at Alexandria, Louisiana. A copy of the Charge Sheet and allied documents are attached.

You have been appointed as defense counsel for SPC DOE by the Commander, Headquarters, 256th Infantry Brigade (M), by Convening Order Number 08-1, dated 12 January, 2008. You are ordered to report on said date at 0800 hours to perform such duty as the Court-Martial may direct. The uniform of the day is Class A.

Witness subpoena information (full names, home and work addresses) should be telephonically furnished to the undersigned as soon as possible, but in no case less than 20 days before the scheduled Court-Martial.

Any questions concerning the content of this notice may be directed to the undersigned at (318) 765-4321.

GLENN GREMILLION

CPT, JA, LANG

Trial Counsel

CF: Military Judge

Staff Judge Advocate, 256th Bde

Office of the State Judge Advocate

S-1, 199th Support Battalion

La. Admin. Code tit. 41, § II-616

Promulgated in accordance with the Office of the Governor, State Military Department, LR 35:2403 (November 2009).

AUTHORITY NOTE: Promulgated in accordance with R.S. 29:11(F).

NOTE: The contents of this letter may be revised as necessary for other Court-Martial participants.