2008 edition - Fort Sam Houston - U.S. Army

guilty, see Article 44; R.C.M. 905(g). See also Grafton v. United
States, 206U.S. 333 (1907).
(b) Effect of finality. This subsection is taken from Article 76 and
paragraph 108 of MCM, 1969 (Rev.). See also Article 69(b).
Rule 1210 New trial
This rule is based on Article 73 and is based on paragraphs 109
and 110 of MCM, 1969 (Rev.). Some matters in those paragraphs
( e.g., paragraphs 110 a(2) and 109 d) are covered in other rules.
See R.C.M. 810; 1209. The second sentence of paragraph 109
d(1) has been deleted as unnecessary and potentially confusing.
Subsections (f)(2) and (3) adequately describe the standards for a
new trial. The rule is generally consistent with Fed.R.Crim. P. 33,
except insofar as Article 73 provides otherwise. As to subsection
(f), see also United States v. Bacon, 12 M.J. 489 (C.M.A. 1982);
U n i t e d S t a t e s v . T h o m a s , 1 1 M . J . 1 3 5 ( C . M . A . 1 9 8 1 ) . W i t h
respect to the second example under subsection (f)(3) of this rule,
it should be noted that if the information concealed by the prosec
u t i o n w a s s p e c i f i c a l l y r e q u e s t e d b y t h e d e f e n s e , a d i f f e r e n t
standard may apply. See United States v. Agurs, 427 U.S. 97
(1976); Brady v. Maryland, 373 U.S. 83 (1963). See also United
States v. Horsey, 6 M.J. 112 (C.M.A. 1979). The second sentence
of paragraph 110 f of MCM, 1969 (Rev.) has been deleted. See
Analysis, R.C.M. 1107(f)(3)(D)(i).
Subsections (h)(3), (4), and (5) have been modified to permit
the convening authority of a new trial to take action in the same
way as in a rehearing; i.e., the convening authority may, when
otherwise authorized to do so (see R.C.M. 1113), order the sentence
executed. Forwarding a new trial to the Judge Advocate
General is not required just because the case was a new trial. The
special circumstances of a new trial do not necessitate such different
treatment in post-trial action.
1998 Amendment: R.C.M. 1210(a) was amended to clarify its
application consistent with interpretations of Fed. R. Crim. P. 33
that newly discovered evidence is never a basis for a new trial of
the facts when the accused has pled guilty. See United States v.
Lambert , 603 F.2d 808, 809 (10th Cir. 1979); see also United
States v. Gordon, 4 F.3d 1567, 1572 n.3 (10th Cir. 1993), cert.
denied, 510 U.S. 1184 (1994); United States v. Collins , 898 F.2d
103 (9th Cir. 1990)(per curiam); United States v. Prince, 533 F.2d
205 (5th Cir. 1976); Williams v. United States, 290 F.2d 217 (5th
Cir. 1961). But see United States v. Brown, 11 U.S.C.M.A. 207,
211, 29 C.M.R. 23, 27 (1960)(per Latimer, J.)(newly discovered
evidence could be used to attack guilty plea on appeal in era prior
to the guilty plea examination mandated by United States v. Care,
18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969) and R.C.M. 910(e)).
Article 73 authorizes a petition for a new trial of the facts when
there has been a trial. When there is a guilty plea, there is no
trial. See R.C.M. 910(j). The amendment is made in recognition
of the fact that it is difficult, if not impossible, to determine
whether newly discovered evidence would have an impact on the
trier of fact when there has been no trier of fact and no previous
trial of the facts at which other pertinent evidence has been
adduced. Additionally, a new trial may not be granted on the
basis of newly discovered evidence unless “[t]he newly discovered
evidence, if considered by a court-martial in the light of all
other pertinent evidence, would probably produce a substantially
more favorable result for the accused.” R.C.M. 1210(f)(2)(C).
ANALYSIS
App. 21, R.C.M. 1301(e)
CHAPTER XIII. SUMMARY COURTS-MARTIAL
Rule 1301 Summary courts-martial generally
(a) Composition. The first sentence is based on Article 16(3). In
the second sentence the express authority for the Secretary concerned
to provide for the summary court-martial to be from a
different service than the accused is new. Paragraph 4 g(2) of
MCM, 1969 (Rev.) included this statement: “However, a summary
court-martial will be a member of the same armed force as
the accused.” The fact that this statement was included in a
subparagraph entitled “Joint command or joint task force” left
u n c l e a r w h a t r u l e a p p l i e d i n o t h e r c o m m a n d s . T h e W o r k i n g
Group elected to clarify the situation by stating a general prohibition
against detailing a summary court-martial from a service
different from that of the accused, but allowing the service Secretaries
to provide exceptions. This is based on the desirability of
having the summary court-martial be from the same service as the
accused, but recognizes that under some circumstances, as where
a small unit of one service is collocated with another service,
greater flexibility is needed, especially in order to comply with
the policy in the third sentence of this subsection. The expression
of policy in the third sentence is based on paragraph 4 c of MCM,
1969 (Rev.). The fourth sentence is based on Article 24(b) and
the fifth sentence of the first paragraph of paragraph 5 c of MCM,
1969 (Rev.). The last sentence is based on the last sentence of the
first paragraph of paragraph 5 c of MCM, 1969 (Rev.), but has
been modified to clarify that the summary court-martial may be
from outside the command of the summary court-martial convening
authority.
(b) Function. This subsection is based on paragraph 79 a of
MCM, 1969 (Rev.). The rule does not restrict other lawful functions
which a summary court-martial may perform under the
Code. See, e.g., Article 136. A summary court-martial appointed
to dispose of decedent’s effects under 10 U.S.C. § 4712 or 10
U.S.C. § 9712 is not affected by these rules. See also R.C.M. 101
and 201(a).
(c) Jurisdiction. This subsection is based on the first sentence of
Article 20 and the first sentence of paragraph 16 a of MCM, 1969
(Rev.). The reference to Chapter II was added to bring attention
to other jurisdictional standards which may apply to summary
courts-martial.
(d) Punishments. This subsection is based on paragraph 16 b of
MCM, 1969 (Rev.), and Article 20.
(e) Counsel. The code does not provide a right to counsel at a
summary court-martial (Articles 27 and 38.). The Supreme Court
of the United States held in Middendorf v. Henry, 425 U.S. 25
(1976), that an accused is not entitled to counsel in summary
courts-martial, and that confinement may be adjudged notwithstanding
the failure to provide the accused with counsel. In so
holding, the Court distinguished summary courts-martial from
civilian criminal proceedings at which counsel is required. See
Argersigner v. Hamlin, 407 U.S. 25 (1972). Although the issue in
Middendorf v. Henry, supra, was whether counsel must be provided
to an accused at a summary court-martial, the Court’s
opinion clearly indicates that there is no right to any counsel
( i n c l u d i n g r e t a i n e d c o u n s e l ) a t s u m m a r y c o u r t s - m a r t i a l . I t i s
within the discretion of the convening authority to detail, or
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