Washington Code 38.38.556 – Review of records — Disposition
Current as of: 2023 | Check for updates
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(1) If the convening authority is the governor, the governor’s action on the review of any record of trial is final.
Terms Used In Washington Code 38.38.556
- Acquittal:
- Judgement that a criminal defendant has not been proved guilty beyond a reasonable doubt.
- A verdict of "not guilty."
- Convening authority: includes , in addition to the person who convened the court, a commissioned officer commanding for the time being, or a successor in command. See Washington Code 38.38.004
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Judge advocate: means an officer of the army or air national guard designated as a judge advocate by the judge advocate general of the army or the judge advocate general of the air force. See Washington Code 38.38.004
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- militia: shall mean the military forces provided for in the Constitution and laws of the state of Washington. See Washington Code 38.04.010
- Organized militia: means the national guard of the state, as defined in section 101(3) of Title 32, United States Code, and any other military force organized under the laws of the state of Washington. See Washington Code 38.38.004
- State judge advocate: means the commissioned judge advocate officer responsible for supervising the administration of the military justice in the organized militia. See Washington Code 38.38.004
- Trial: A hearing that takes place when the defendant pleads "not guilty" and witnesses are required to come to court to give evidence.
(2) In all other cases not covered by subsection (1) of this section, if the sentence of a special court-martial as approved by the convening authority includes a dishonorable discharge, whether or not suspended, the entire record shall be sent to the appropriate staff judge advocate of the state force concerned to be reviewed in the same manner as a record of trial by general court-martial. The record and the opinion of the staff judge advocate shall then be sent to the state judge advocate for review.
(3) All other special and summary court-martial records shall be sent to the judge advocate of the appropriate force of the organized militia and shall be acted upon, transmitted, and disposed of as may be prescribed by regulations of the governor.
(4) The state judge advocate shall review the record of trial in each case sent for review as provided under subsection (2) of this section. If the final action of the court-martial has resulted in an acquittal of all charges and specifications, the opinion of the state judge advocate is limited to questions of jurisdiction.
(5) The state judge advocate shall take final action in any case reviewable by the state judge advocate.
(6) In a case reviewable by the state judge advocate under this section, the state judge advocate may act only with respect to the findings and sentence as approved by the convening authority. The state judge advocate may affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as the state judge advocate finds correct in law and fact and determines, on the basis of the entire record, should be approved. In considering the record, the state judge advocate may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses. If the state judge advocate sets aside the findings and sentence, the state judge advocate may, except where the setting aside is based on lack of sufficient evidence in the record to support the findings, order a rehearing. If the state judge advocate sets aside the findings and sentence and does not order a rehearing, he or she shall order that the charges be dismissed.
(7) In a case reviewable by the state judge advocate under this section, the state judge advocate shall instruct the convening authority to act in accordance with the state judge advocate’s decision on the review. If the state judge advocate has ordered a rehearing but the convening authority finds a rehearing impracticable, the state judge advocate may dismiss the charges.
(8) The state judge advocate may order one or more boards of review each composed of not less than three commissioned officers of the organized militia, each of whom must be a member of the bar of the highest court of the state. Each board of review shall review the record of any trial by special court-martial, including a sentence to a dishonorable discharge, referred to it by the state judge advocate. Boards of review have the same authority on review as the state judge advocate has under this section.