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Jurisdictional  Maximum  Punishments - 14135_216
TC is allowed to make another argument, rebutting anything that was brought up by the DC. After all arguments are complete and if the trial is composed of members, the military judge instructs the members on findings.  The  members  withdraw  from  the  courtroom for  deliberation  on  findings. If the court is composed of members, the presi- dent  of  the  court  will  announce  the  findings.  If  no members, the judge announces findings. At an SPCM, two-thirds of the members present at trial must agree on  each  finding  of  guilty.  In  computing  the  necessary number  of  votes  to  convict,  a  resulting  fraction  is counted as one. Thus, on a court of five members, the number  of  voters  required  to  convict  is  three  and one-third or, applying the rule, four votes. In a trial by military  judge  alone,  the  required  number  of  votes  is one—the judge’s. Presentencing Procedure After findings of guilty have been announced, the prosecution and defense may present matters to aid the  court-martial  in  determining  an  appropriate  sen- tence. in the l l l l Such matters are ordinarily presented by the TC following sequence: Service  record  data  relating  to  the  accused taken from the charge sheet Personal data relating to the accused and of the character of the accused’s prior service as taken from  the  service  record Evidence  of  prior  convictions,  military  or  civil- ian Evidence  of  rehabilitative  potential Extenuation  and  Mitigation The defense may present matters in rebuttal of any material presented by the prosecution and may present matters in extenuation and mitigation. Matter in  extenuation  of  an  offense  serves  to  explain  the circumstances surrounding the commission of an of- fense, including those reasons for committing the of- fense  that  do  not  constitute  a  legal  justification  or excuse. Matter in mitigation of an offense is intro- duced to lessen the punishment to be adjudged by the court-martial, or to furnish grounds for a recommen- dation of clemency. The accused may testify, make an unsworn state- ment, or both in extenuation, in mitigation or to rebut matters  presented  by  the  prosecution,  or  for  all  three purposes. The accused may limit such testimony or statement to any one or more of the specifications of which  the  accused  has  been  found  guilty. Argument on Sentence and Sentence After  introduction  of  matters  relating  to  sentenc- ing,  counsel  for  the  prosecution  and  defense  may argue for an appropriate sentence. Again, if it is a members’ trial, the military judge will instruct the members  on  sentencing.  As  with  findings,  two-thirds of the members must be in concurrence for a particu- lar sentence. In a members’ trial, the president of the court  will  announce  sentence,  otherwise  the  military judge  announces  it.  Immediately  after  sentencing  the military judge informs the accused of posttrial and appellate  rights. Adjournment The military judge adjourns the court-martial at the end of the trial of an accused or proceeds to trial of other cases referred to that court-martial. Clemency After trial, any or all court members and/or the military judge may recommend that the CA exercise clemency  to  reduce  the  sentence,  notwithstanding their vote on the sentence at trial. SPECIAL  COURT-MARTIAL PUNISHMENTS Articles 19, 55, and 56, UCMJ, and R.C.M. 1003 are the primary references concerning the punishment authority  of  the  SPCM.  Appendix  12  and  part  IV, MCM,  1984,  also  address  punishment  power.  Part  IV of  the  MCM  contains  the  maximum  permissible  pun- ishment  for  a  particular  offense.  The  other  references further  limit  punitive  authority,  depending  on  the level of court-martial and type of punishment being considered. Prohibited  Punishments Article  55,  UCMJ,  flatly  prohibits  flogging, branding,  marking,  tattooing,  the  use  of  irons  (except for safekeeping of prisoners), and any other cruel and unusual punishment. Other punishments not recog- nized by service customs include shaving the head, tying  up  by  hands,  carrying  a  loaded  knapsack,  plac- ing  in  stocks,  loss  of  good  conduct  time  (a  strictly 7-17

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