In a published decision in United States v. Chandler, __ M.J. __, No. 20120680 (A. Ct. Crim. App. Apr. 7, 2015) (link to slip op.), the Army CCA finds that a military judge improperly held a post-trial proceeding in revision for the purpose of giving corrected instructions to the members, and allowing them to deliberate anew, on the findings.
The judge improperly instructed the panel on the defense of mistake of fact as to the nature of property at issue in an alleged conspiracy to commit larceny, giving the general intent mistake instruction (requiring that the mistake be objectively reasonable) instead of the specific intent mistake instruction (requiring only that the mistake actually exist). The appellant was then convicted. But the judge realized the mistake when authenticating the record, and ordered a proceeding in revision under R.C.M. 1102, stating:
My proposal will be to reinstruct the members and direct them to once again deliberate on findings in light of the corrected instruction. I will also give counsel an opportunity to re-argue on findings in light of the corrected instruction. Obviously, if there are different findings, the members will also deliberate and vote on a new sentence, provided the accused is found guilty of any offense.
Slip op. at 7. The proceeding occurred, the members were properly instructed, and they again convicted the appellant. But the CCA finds that the post-trial proceeding was void ab initio:
We can think of no matters more substantive than the defenses potentially applicable to a servicemember facing court -martial. Instead of resolving an administrative matter, the post -trial proceeding here more closely resembled a rehearing, but with the same panel—which the judge had no authority to order. The military judge likely understood that his approach was somewhat akin to a rehearing, as he invoked the sentence limitations provisions of R.C.M. 810(d). The hearing could also be viewed as a flawed attempt at reconsideration of findings, for which R.C.M. 924 governs. Contrary to R.C.M. 924, the proceeding occurred after the panel unambiguously announced findings on 10 July 2012, and it occurred at the military judge’s direction instead of a panel member’s proposal.
We endorse initiative-taking by military judges. Such an approach is crucial in our justice system, which favors resolution of disputed issues at trial. We also understand the desire for quickly reaching a solution in the field, instead of waiting for a convening authority or an appellate court to order the same solution. However, our system’s range of post-trial remedies does not include remand to an original finder of fact in order to cure instructional error. This limitation is understandable, since one cannot reasonably expect panel members to set aside their original findings and deliberate anew. Put another way, as the post -trial proceeding began in this case, it was far more likely that the panel would simply validate its earlier findings of guilt; we cannot affirm such a process. Instead, we conclude the military judge erred in directing a proceeding in revision for the purposes of correcting erroneous instructions and directing the same panel to deliberate again. We regard this proceeding as void ab initio under the circumstances and need not address additional procedural peculiarities, including the military judge’s emailing a redacted record of trial to the panel and his denying the defense request to voir dire the panel.
Slip op. at 15-16. Nevertheless, the CCA finds the instructional error harmless.