Two additional tips

Two additional tips

Two additional tips

  1. ucmjlawfirm212Use a certificate of service when providing the defense with the SJAR. United Statesv. McClelland , 25 M.J. 903 (A.C.M.R. 1988). This logic should be extended to service of the accused’s copy of the SJAR. See RCM 1106(f).
  2. List each enclosure (petitions for clemency, etc.) that goes to the CA on the SJAR/addendum and/or have the convening authority initial and date all documents. United States v. Hallums , 26 M.J. 838 (A.C.M.R. 1988); United States v. Craig , 28 M.J. 321 (C.M.A. 1989).
    1. Query: What if the CA forgets to initial one written submission, but initials all the  others? Have you just given the DC evidence to argue that the CA “failed to consider” a written defense submission?
    2. United States v. Blanch , 29 M.J. 672 (A.F.C.M.R. 1989) (government entitled to enhance “paper trail” and establish that accused’s RCM 1105 matters were forwarded to and considered by the CA); United States v. Joseph , 36 M.J. 846 (A.C.M.R. 1993) (SJA’s affidavit established that matters submitted were considered by CA before action).
    3. United States v. Briscoe , 56 M.J. 903 (A.F. Ct. Crim. App. 2002). Failure of SJA to prepare addendum to PTR advising CA to consider all matters (i.e., written maters) submitted by accused cured through post-trial affidavit from CA and SJA swearing that all clemency matters were considered by CA prior to action.
    4. United States v. Stephens , 56 M.J. 391 (C.A.A.F. 2002). CA’s action stated that he “‘specifically considered the results of trial, the record of trial, and the recommendation of the [SJA]’.” Id . at 392. The CA’s action did not list the accused’s clemency matters. Held: no error since the evidence revealed the CA considered the addendum which included the accused’s clemency materials. “We decline to hold that a document embodying the [CA’s] final action is defective simply because it refers to the SJA’s recommendation without also referring to the attachments, such as an addendum or clemency materials.” Id .
    5. United States v. Gaddy , 54 M.J. 769 (A.F. Ct. Crim. App. 2001). The appellant submitted a single letter from his pastor in his RCM 1105 matters. The SJA did not do an addendum accounting for the letter nor did the PTR advise the CA he had to consider all written submissions made by the appellant. According to the court, it can assume the CA considered all defense submissions when the SJA prepares an addendum which includes mention of the defense submissions, advises the CA that he must consider the matters submitted, and the addendum actually lists the matters submitted. If no addendum is prepared, the record must reflect that the CA was advised of his obligation to consider all written submissions from defense and there must be some evidence that the defense matters were actually considered. The AFCCA found prejudice and reduced the appellant’s sentence by two months.
    6. United States v. Baker , 54 M.J. 774 (A.F. Ct. Crim. App. 2001). There was no evidence in the record that the CA had considered the defense RCM 1105 matters. SJA did not do an addendum to his PTR despite lengthy letter from accused requesting clemency. Affidavits obtained to establish that the CA considered the appellant’s letter. Although the court found no prejudicial error, they decry the waste of appellate assets caused by the SJA failing to follow standard  Air Force Air Force Law Review  post-trial process. The court stated that they will be sending information to their TJAG about SJAs who commit egregious post-trial errors.