## Facts

- Airman Basic Daniel D. Davis pleaded guilty at a special court-martial, pursuant to a pretrial agreement, to wrongful use of cocaine, wrongful use of marijuana, and AWOL (Dec. 21, 2000 to Feb. 16, 2001).
- The convening authority, Major General F, had given command briefings expressing concern about increasing drug use and indicating drug offenders should not expect leniency.
- The court-martial sentenced Davis to a bad-conduct discharge and three months’ confinement.
- Major General F approved the sentence in post-trial action.
- The Air Force Court of Criminal Appeals affirmed the findings and sentence.
- On further appeal, Davis argued Major General F’s prior public statements showed an “inelastic attitude” toward clemency, requiring disqualification from post-trial action.

## Issues

1. Whether a convening authority’s public, general anti-drug statements indicating drug offenders should not expect leniency demonstrate an “inelastic attitude” toward clemency requiring disqualification from post-trial action.
2. If disqualification was required, whether the appellant made a colorable showing of possible prejudice from the convening authority’s post-trial action.

## Decision

- The Court of Appeals for the Armed Forces affirmed the lower court’s decision.
- The court held the convening authority’s statements did not establish an inelastic attitude toward clemency requiring disqualification.
- The court also held that, even assuming error, Davis failed to make a colorable showing of possible prejudice.

## Legal Principles

- A convening authority may be disqualified from post-trial action if (1) the authority is an accuser, has a personal interest in the outcome, or has personal bias toward the accused, or (2) the authority has displayed an inelastic attitude toward post-trial responsibilities.
- An “inelastic attitude” exists when the convening authority’s statements or conduct show the door to a full and fair clemency review is closed.
- In challenges to post-trial clemency action, an appellant must make a colorable showing of possible prejudice; prejudice analysis is necessarily speculative because clemency is discretionary.
- General, command-wide statements condemning misconduct and emphasizing discipline do not alone prove a predetermined refusal to consider individualized clemency.

## Conclusion

C.A.A.F. upheld the convening authority’s post-trial action because the anti-drug briefings were general policy statements that did not foreclose individualized clemency consideration, and Davis did not show a colorable possibility that the convening authority’s remarks affected the clemency outcome.


United States v. Davis, 58 M.J. 100 (C.A.A.F. 2003)