2020 (October Term)
United States v. Chandler, 80 M.J. 425 (one of the goals of the UCMJ is to assure the accused a thoroughly fair and impartial review of his case; towards that goal, Article 6(c), UCMJ, says in pertinent part that no person who served as trial counsel in a case may later serve as a staff judge advocate or legal officer to any reviewing or convening authority upon the same case; a person does not need to be officially detailed as trial counsel in order to act as trial counsel; rather, a person will be disqualified from acting as the SJA if that person performed the duties of a disqualifying position; an SJA may become ineligible when (1) he or she displays a personal interest or feeling in the outcome of a particular case, (2) there is a legitimate factual controversy with defense counsel, or,(3) he or she fails to be objective, such that it renders the proceedings unfair or creates the appearance of unfairness).
(in this case, where trial counsel inserted into the PTA the provision that appellant was required to enter into a reasonable stipulation of fact, the SJA, as legal advisor to the convening authority, was empowered to advise the convening authority regarding whether this condition of the PTA was met; in this regard, it was not inappropriate for the SJA to directly call and inform defense counsel that he would advise the convening authority not to accept the PTA unless appellant agreed to stipulate to the multiple uses of cocaine and marijuana reflected in his confession, especially where trial counsel and the defense paralegal were part of this conversation and trial and defense counsel still had the ability to decide how to handle the stipulation at trial and in presentencing proceedings; the SJA’s pretrial actions did not transform him into a trial counsel, and thus, did not disqualify him under Article 6(c) from advising the convening authority on post-trial matters).
(where a legitimate factual controversy exists between the staff judge advocate and the defense counsel, the staff judge advocate must disqualify himself or herself from participating in the post-trial recommendation).
(an SJA may be disqualified if he or she has a personal interest or feeling in the outcome of a particular case; however, in this case, the fact that the SJA sought the inclusion of appellant's confession in the stipulation does not demonstrate a personal rather than a professional interest in the case).
(in this case, where the defense counsel claimed that the SJA was disqualified post-trial from further advising the convening authority because of the his pretrial actions, the mere fact that an SJA opined on the merits of his own disqualification in the addendum to the SJAR did not itself reflect a personal interest in the case; an SJA must determine whether he or she is disqualified; standing alone, the mere fact that an SJA is required to respond to an allegation that he or she is disqualified cannot be disqualifying itself; to rule otherwise would empower parties to unilaterally determine whether a duly competent authority remains eligible to address a legal issue).(the SJA’s omission of mitigating factors in his SJAR does not demonstrate a disqualifying personal interest in the case; SJAs are not required to include mitigating information in their SJARs).
2010 (September Term)
United States v. Hull, 70 M.J. 145 (in view of the potential impact of newly discovered evidence on appellate consideration of a case, the SJA or the convening authority may find it useful to apply Article 73 and RCM 1210 criteria as a means of addressing such information early in the post-trial process).
(prior to acting on the results of a general court-martial and certain special courts-martial, the convening authority must consider the SJA’s recommendation prepared under RCM 1106; although the SJA is not required to examine the record for legal errors, the SJA must state whether corrective action on the findings or sentence should be taken when an allegation of legal error is raised in matters submitted by the defense under RCM 1105 or when otherwise deemed appropriate by the staff judge advocate; the SJA’s response to legal errors raised by the defense may consist of a statement of agreement or disagreement with the matter raised by the accused; an analysis or rationale for the SJA’s statement, if any, concerning legal errors, is not required; although not required, an analysis of legal issues raised by the defense may facilitate resolution of legal issues at the trial level, thereby conserving appellate resources).
(where the defense in this case submitted a post-trial request for a rehearing invoking the new trial criteria of RCM 1210 and the SJA then proceeded to address the defense request on the terms raised by the defense, in that context, it was not inappropriate for the SJA to apply the criteria set forth in RCM 1210 by analogy to the rehearing request; although the SJA might have added further information concerning the distinction between a “new trial” ordered during appellate review under Article 73, and a “rehearing” ordered by a convening authority under Article 60, omission of that information did not constitute error in the context of the defense request).
(when advising the convening authority on a defense post-trial request for a rehearing based on newly discovered evidence that a witness had been told by the alleged rape victim that her encounter with appellant had been consensual, the SJA was not obligated to inform the convening authority about the possibility of ordering a post-trial Article 39(a) session for the purpose of compelling that witness or any other to appear and give sworn testimony, where there was an absence of a defense request for such a post-trial Article 39(a) session, and in light of the vague nature of the unsworn information provided by the defense).
(in light of the nature of the defense’s request for a rehearing based on newly discovered evidence and the absence of a defense request for a post-trial Article 39(a) session, the SJA did not misadvise the convening authority by noting that the newly discovered evidence fell within the parameters of RCM 1210, but then recommending against granting a rehearing; viewed in its entirety, the SJA’s recommendation did not take the position that a new trial was required under the criteria set forth in RCM 1210; instead, the recommendation made clear that the SJA was advising the convening authority that the defense evidence could be considered under the criteria of RCM 1210, but that the nature of the evidence did not warrant a new trial under those criteria; as such, the convening authority did not abuse her discretion in approving the findings and sentence and not ordering a rehearing).
2008 (Transition)
(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).