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Service of SJAR on DC and the accused. RCM 1106(f)(1)

Service of SJAR on DC and the accused. RCM 1106(f)(1)

Service of SJAR on DC and the accused. RCM 1106(f)(1)

  1. Service of SJAR on DC and the accused. RCM 1106(f)(1)Before forwarding the recommendation and the ROT to the CA for action, the SJA orlegal officer shall cause a copy of the SJAR to be served on counsel for the accused. A separate copy will be served on the accused.
    1. United States v. Hickok , 45 M.J. 142 (C.A.A.F. 1996). Failure to serve PTR on counsel is prejudicial error, even though counsel submitted matters before authentication of record and service of PTR. Original counsel PCS’d, new counsel never appointed, and OSJA never tried to serve PTR. The CAAF found accused “was unrepresented in law and in fact” during this stage. Fact that RCM 1105 clemency package was submitted at an early stage (and, all conceded, considered by CA at action) cannot compensate for the separate post-trial right to respond to the PTR under RCM 1106. United States v. Williams , 57 M.J. 1 (C.A.A.F. 2002) (finding error for failing to serve DC with PTR prior to action when PTR omitted clemency recommendation from sentencing authority).
    2. United States v. Siler , 60 M.J. 772 (N-M. Ct. Crim. App. 2004). When the SJA served the PTR on appellant, the substitute DC put the SJA on notice that the DC did not have an attorney-client relationship with the appellant. The CA took action without any comment by appellant or his substitute DC. Once on notice of a potential problem concerning post-trial representation, the government has the responsibility to ensure adequate representation.
    3. United States v. Cornelious , 41 M.J. 397 (C.A.A.F. 1995). The SJA should have realized that service of the PTR was inadequate because it was not served “on counsel for the accused” as required by RCM 1106(f)(1). In this case the JAA Inn of Court court held that service was tantamount to no service at all and ordered a new PTR and CA action. The court took pains to explain that because the SJA affirmatively inquired into the existence of the attorney-client relationship, he could not ignore the results of his inquiry.
    4. United States v. Klein , 55 M.J. 752 (N-M. Ct. Crim. App. 2001). Failure to serve PTR on DC until five days after CA’s action constituted error, but accused failed to make “some colorable showing of possible prejudice.” However, relief was granted on another basis.
    5. United States v. Williams , 57 M.J. 1 (C.A.A.F. 2002). Action set aside because PTR which omitted required clemency recommendation from the MJ at sentencing served on DC day after action in the case.
    6. United States v. Smith , 59 M.J. 604 (N-M. Ct. Crim. App. 2003). Failure to produce evidence of service of the SJAR on the appellant prior to action does not preclude approval of a punitive discharge despite language to the contrary in RCM 1107(d)(4) and 1103(c)(1). The court, after noting that RCM 1107(d)(4) was “inartfully drafted,” applied a “‘whole statute’ principle of statutory interpretation . . . considering the drafter’s intent . . . and [considering] case law,” rejected a literal reading of RCM 1107(d)(4) and 1103(c)(1) that would require disapproval of a punitive discharge. Finally, the court noted that the appellant failed to make a colorable showing of possible prejudice from the alleged error.
  2. Although normally submitted simultaneously, RCM 1105 and RCM 1106submissions serve different purposes. RCM 1105 submissions are the accused’s submissions where RCM 1106 focuses on submission by the accused’s counsel.
  3. RCM 1106(f)(1). “If it is impracticable to serve the recommendation on the accusedfor reasons including but not limited to the transfer of the accused to a distant place, the unauthorized absence of the accused, or military exigency, or if the accused so requests on the record at court or in writing, the accused’s copy shall be forwarded to the accused’s defense counsel. A statement shall be attached to the record explaining why the accused was not served personally.”
    1. United States v. Ayala , 38 M.J. 633 (A.C.M.R. 1993). Substitute service of ROT and PTR on DC authorized where accused is confined some distance away.
    2. United States v. Smith , 37 M.J. 583 (N.M.C.M.R. 1993). Mailing of recommendation is not impracticable where all parties are located in CONUS and the accused has provided a current mailing address.
    3. United States v. Lowery , 37 M.J. 1038 (A.C.M.R. 1993). Real issue in this area is whether accused and defense counsel have had an opportunity to submit post-trial matters.
    4. United States v. Ray , 37 M.J. 1052 (N.M.C.M.R. 1993). Mere failure to serve does not warrant relief; accused did not offer evidence to rebut presumption that SJA had properly executed duties, did not submit matters that would have been submitted to CA, and did not assert any inaccuracies in the recommendation.
    5. United States v. Ybarra , 57 M.J. 807 (N-M. Ct. Crim. App. 2002). Failure to serve ROT and SJAR on appellant as specifically requested by appellant does not warrant relief (i.e., no prejudice) when the appellant submitted a waiver of clemency and he failed, under United States v. Wheelus , 49 M.J. 283 (C.A.A.F. 1998), to cite to any errors or omissions in the SJAR that he would have brought to the CA’s attention had he been given the opportunity to do so.
  4. RCM 1106(f)(2). The accused may designate at trial which counsel shall be servedwith the SJAR or may designate such counsel in writing to the SJA before the SJAR is served. Absent such a designation, the priority for service is: civilian counsel, individual military counsel, and then detailed counsel. But see United States v. Johnson , 26 M.J. 509 (A.C.M.R. 1988) (holding that service on detailed defense counsel, even when accused was represented by civilian counsel, was sufficient. Accused “must have acquiesced” in the response filed by detailed defense counsel because his letter to the CA was included in the detailed defense counsel’s response to the SJAR).
  5. RCM 1106(f)(2). If no civilian counsel exists and all military counsel have beenrelieved or are not reasonably available, substitute counsel shall be detailed by an appropriate authority. AR 27-10, para. 6-9, says the Chief, USATDS, or his delegee will detail defense counsel.
    1. Substitution of counsel problems. RCM 1106(f)(2).
      1. United States v. Iverson , 5 M.J. 440 (C.M.A. 1978). Substituted counsel must form attorney-client relationship with the accused; absent extraordinary circumstances, only the accused may terminate an existing relationship. See also United States v. Miller , 45 M.J. 149 (C.A.A.F. 1996). Substitute defense counsel’s failure to formally establish attorney-client relationship with accused found harmless, despite substitute counsel’s failure to consult accused or submit clemency package. Detailed counsel (who later ETS’d) had submitted clemency materials before service of PTR, and government was not on any reasonable notice that substitute counsel and accused failed to enter attorney-client relationship. In such circumstances, the test is for prejudice.
      2. United States v. Howard , 47 M.J. 104 (C.A.A.F. 1997). Rejecting an invitation to overrule Miller , the CAAF restated that failure of the substitute DC to contact the client post-trial will be tested for prejudice. “Prejudice” does not require the accused to show that such contact and the resulting submission would have resulted in clemency; it only requires a showing that the accused would have been able to submit something to counter the SJA’s PTR.
      3. United States v. Antonio , 20 M.J. 828 (A.C.M.R. 1985). Accused may waive the right to his former counsel by his acceptance of substitute counsel and his assent to representation.
      4. United States v. Hood , 47 M.J. 95 (C.A.A.F. 1997). Even if the substitute counsel does form the required attorney-client relationship, failure to discuss the accused’s clemency packet with him prior to submission is deficient performance under the first prong of the Strickland analysis.
      5. United States v. Johnston , 51 M.J. 227 (C.A.A.F. 1999). The convening authority must ensure that the accused is represented during post-trial. Submission of RCM 1105 and 1106 matters is considered to be a critical point in the criminal proceedings against an accused.
    2. If the accused alleges ineffective assistance of counsel (IAC) after trial, that counsel cannot be the one who is served with the SJAR.
      1. United States v. Cornelious , 41 M.J. 397 (C.A.A.F. 1995). Government on notice of likely IAC. Court remanded to determine whether accused substantially prejudiced.
      2. United States v. Carter , 40 M.J. 102 (C.M.A. 1994). No conflict exists where DC is unaware of allegations.
      3. United States v. Alomarestrada , 39 M.J. 1068 (A.C.M.R. 1994). Dissatisfaction with outcome of trial does not always equal attack on competence of counsel requiring appointment of substitute counsel.
      4. United States v. Sombolay , 37 M.J. 647 (A.C.M.R. 1993). Substitute counsel not required where allegations of ineffective assistance are made after submission of response to PTR.
  6. RCM 1106(f)(3). Upon request, a copy of the ROT shall be provided for use by DC.DC should include this boilerplate language in the Post-Trial and Appellate Rights Forms.