2008 (Transition)
United
States v. Moorefield, 66 M.J. 170 (the fact that
the SJA served as
the military judge in an earlier, unrelated court-martial of appellant
did not
disqualify him from participating in a second court-martial of
appellant under
RCM 1106(b) and Article 6, UCMJ, which bar a person from participating
as the
SJA in the same case that he served as a military judge, where the
courts-martial occurred several years apart and involved different
victims and
evidence, and thus the two trials were not the same case).
(nothing
precludes an SJAR addendum from being
served on accused and counsel, even when it does not contain new
matter; such
transparency may preclude appeals).
(new matter is not defined in
the MCM, and a
comprehensive definition of new matter has not been provided; however,
the
non-binding Discussion to the MCM provides guidance and its
illustrations of
what is and is not a new matter have been cited with approval; the
Discussion
provides that new matter includes discussion of the effect of new
decisions on
issues in the case, matter from outside the record of trial, and issues
not
previously discussed; new matter does not ordinarily include any
discussion by
the SJA or legal officer of the correctness of the initial defense
comments on
the recommendation).
(where the SJAR addendum
stated that the members
had the benefit of personally hearing the evidence and determined that
the
sentence was appropriate, it did not contain new matter; noting that
the
members had determined
that five
years of confinement was appropriate after hearing all of the
evidence
in the case was not news, and thus not new matter; the statements in
question
were not news to the convening authority, who presumptively knew that
members
heard the case, as he referred the case and detailed members to it via
his
convening order; and the statements did not invite the convening
authority to
defer to the members because they had already heard the evidence in
appellant’s
case and were not persuaded that a lower sentence was appropriate;
being told
that members arrived at the sentence after hearing all the evidence
hardly
invites the convening authority to shirk his duty to take action
pursuant to
RCM 1107).
(an SJAR addendum
accurately referencing the
fact that the court-martial heard evidence before imposing a sentence,
without
more, does not constitute new matter).
(an SJAR addendum that
actually invited the
convening authority to abdicate his duties because the trier of fact
had
reviewed all clemency materials, whether true or not, would be new
matter
within the meaning of RCM 1106(f)(7)).
(in this case, the SJAR
addendum stated nothing
new and the information contained therein was not erroneous,
inadequate, or
misleading; instead, it merely stated an obvious fact in the course of
advising
the convening authority on the correctness of the initial defense
comments on
the recommendation - that the members had the benefit of personally
hearing the
evidence and determined that the sentence was appropriate; RCM
1106(f)(7) does
not extend to encompass such statements; thus, failure to serve the
addendum on
defense counsel did not necessitate a new convening authority’s action).
2006
United
States v. Alexander, 63 M.J. 269 (after
authentication of the
record of trial, the convening authority’s SJA prepares a
recommendation for
action by the convening authority; the recommendation assists the
convening
authority in deciding what action to take on the sentence; under the
authority
granted by Congress in Article 60(d), UCMJ, the President has
prescribed the
contents of the recommendation, including the requirement to provide
concise
information as to the findings and sentence adjudged by the
court-martial; the
information regarding the findings need not include either the verbatim
text of
the specification or an exact description of any exceptions or
substitutions
made by the court-martial).
(the SJA serves
the recommendation
on the defense prior to submission to the convening authority; the
defense may provide
the convening authority with comments on the recommendation, as well as
other
matters; if the defense does not comment on a deficiency in the SJA’s
recommendation, the matter is waived, absent plain error).
(if the list of
findings in the
SJA’s post-trial recommendation omits any reference to a particular
finding,
the court of criminal appeals may not presume that the convening
authority
implicitly approved or disapproved the omitted finding; in such a case,
the
court must return the case for a new SJA’s review and convening
authority’s
action unless the court determines that the affected finding should be
disapproved at the appellate level in the interest of efficient
administration
of justice).
(pursuant to RCM
1106(d)(3)(A),
the SJA’s recommendation may provide the convening authority with
concise
information about the findings, without specifying exactly what acts
the
appellant was found guilty of or what language was excepted or
substituted; for
the specific purpose of determining what offenses were approved by a
convening
authority; although disapproval of the findings requires express action
by the
convening authority, the convening authority is not required to take
express
action to approve the findings; in that context, the SJA’s description
of a
finding is sufficient if it provides a general depiction of the
offense,
without the necessity for reciting the details of each element and
aggravating
factor).
2005
United
States v. Scalo, 60 M.J. 435 (when a sentence includes a punitive
discharge
or confinement for one year or more, the convening authority must
receive a
written recommendation from his or her SJA before taking action on the
case;
the President has issued detailed guidance as to the material that must
be set
forth in the SJA’s recommendation, including a statement of the nature
and
duration of any pretrial restraint).
(the
SJA’s
recommendation plays a vital role in providing the convening
authority
with complete and accurate advice in the exercise of command
discretion;
accurate advice is particularly important in light of the fact that the
convening authority is not required to review the record of trial
personally
before taking action).
(if
defense
counsel does not make a timely comment on an omission in the SJA’s
recommendation, the error is waived unless it is prejudicial under a
plain
error analysis).
(in
the context
of a post-trial recommendation error, whether that error is preserved
or is
otherwise considered under the plain error doctrine, an appellant must
make
some colorable showing of possible prejudice).
2004
United
States v. Taylor, 60 MJ 190 (a military accused’s best
hope
for sentence relief from a court-martial judgment comes in the
convening
authority’s action, and the staff judge advocate’s recommendation to
the
convening authority plays a pivotal role in an accused’s chances for
relief; as
a consequence, a disqualified staff judge advocate’s participation in
the
post-trial review process is a serious deficiency that cannot be said
to be a
technical matter without impact on the outcome of the proceedings).
(where
a defense
counsel’s post-trial submission includes allegations of legal error,
the staff
judge advocate’s advice to the convening authority is particularly
important;
in this case, where the defense counsel submitted allegations of legal
error
and the staff judge advocate’s advice was given by one who should have
been
disqualified from acting, the lack of advice from a properly-qualified
staff
judge advocate constituted a colorable showing of prejudice, warranting
a new
post-trial review and action).
1999
United
States v. Lee, 50 MJ 296 (recommendations of a military
judge
must be brought to the attention of the convening authority to assist
him in
considering action on the sentence).
United
States v. Finster, 51 MJ 185 (the importance of the SJA
recommendation under Article 60(d), UCMJ, is underscored by Congress
establishing criteria that disqualify a person from acting as an SJA in
designated situations, (Article 6(c), UCMJ), and by this Court in
granting
relief in cases in which the SJA was disqualified because of
conflicting
interests).
(preparation of a post-trial recommendation by enlisted person who
was
neither the SJA nor legal officer met the criteria for plain error
where:
(1) preparation of the post-trial recommendation by an enlisted person
was
error; (2) the error was plain in light of the well-understood terms
“staff
judge advocate” and “legal officer”; and (3), in light of the critical
role
assigned by Congress to the SJA or legal officer in advising the
convening
authority in that officer’s exercise of discretion, the failure to
obtain a
recommendation from a qualified person materially prejudiced the
substantial right
of the accused to have his submission considered by a qualified SJA or
legal
officer prior to the convening authority’s action).