Errors in the Recommendation
Overview of errors in the recommendation in post-trial processes:
- Corrected on appeal without return to CA for action.
- Returned for new recommendation and new action. See United States v. Craig , 28M.J. 321 (C.M.A. 1989). “Since it is very difficult to determine how a convening authority would have exercised his broad discretion if the staff judge advocate had complied with RCM 1106, a remand will usually be in order.” Id . at 325 (quoting United States v. Hill , 27 M.J. 293, 296 (C.M.A. 1988)). See also United States v. Reed , 33 M.J. 98 (C.M.A. 1991); United States v. Hamilton, 47 M.J. 32 (C.A.A.F. 1997). “This court has often observed that the convening authority is an accused’s last best hope for clemency [citation omitted]. Clemency is the heart of the convening authority’s responsibility at that stage of a case. If an SJA gives faulty advice in this regard, the impact is particularly serious because no subsequent authority can adequately fix that mistake.” Id . at 35. See also United States v. Ord , 63 M.J. 279 (C.A.A.F. 2006). When the CA did not act expressly on the findings and the SJAR omitted a finding of guilty adjudged by the court-martial, the ACCA could not presume that the CA approved the omitted findings, but could return the record for a new SJAR and action.
- United States v. Pate , 54 M.J. 501 (A. Ct. Crim. App. 2000). Accused was convicted at trial of several charges which were the basis of a prior Article 15. The SJA advised the CA of the Article 15 in his PTR and erroneously stated the Article 15 was set aside. Defense noted the error in the RCM 1105/6 submissions and the SJA agreed with the defense in an addendum, which advised the CA he could not consider the Article 15 for any purpose other than granting Pierce credit to the appellant. Defense claimed that under Pierce , an Article 15 of this nature cannot be used for any purpose, administrative or otherwise, and thus it was error for the SJA to mention it in the PTR. The court disagreed, stating that Pierce does not require withholding this information from the CA. The court went on to state that even if it did, the defense had failed to make a colorable showing of possible prejudice.
- United States v. Williams , 54 M.J. 626 (A.F. Ct. Crim. App. 2000). SJA signed the PTR three days before the military judge authenticated the ROT. Defense claimed PTR was invalid because it was based on an unauthenticated record of trial (ROT) thus invalidating the CA’s action. The court disagreed – ROT had only received minor, non-substantive errata from the military judge and defense failed to raise any objection in the RCM 1105/6 submissions. Court found no prejudice to the accused and noted that the issue was waived. See also United States v. Smith , 54 M.J. 783 (A.F. Ct. Crim. App. 2001) (cautioning that when PTR dated nine days before authentication of the ROT, “this sort of inattention to detail far too often creates unnecessary issues on appeal.”). Id . at 788.
- United States v. Farence , 57 M.J. 674 (C.G. Ct. Crim. App. 2002). Despite erroneous SJAR that advised the CA that the appellant was convicted of two offenses dismissed for sentencing purposes by the MJ, no corrective action was required when the appellant failed to make “some colorable showing of possible prejudice.”
- Waived absent plain error. RCM 1106(f)(6) provides that “[f]ailure of counsel for the accused to comment on any matter in the recommendation or matters attached to the recommendation in a timely manner shall waive later claim of error with regard to such matter in the absence of plain error.”
- In cases where neither the appellant nor his counsel raises any error in the SJAR either as an RCM 1106(f)(4) matter or on appeal, the reviewing court will apply a United States v. Powell , 49 M.J. 460, 463 (C.A.A.F. 1998), plain error analysis: (1) was there an error; (2) was the error plain and obvious; and, (3) did the error materially prejudice a substantial right. United States v. Scalo , 59 M.J. 646 (A. Ct. Crim. App. 2003) (en banc), aff’d , 60 M.J. 435 (C.A.A.F. 2005). The reviewing court will not apply the lesser Wheelus standard of “some colorable showing of possible prejudice” to establish plain error in cases where the issues is not raised by the appellant either at or before action or on appeal. Id . at 650.
- In cases where neither the appellant nor his counsel raises an allegation of error in the SJAR as an RCM 1106(f)(4) matter, but raises the error on appeal, the reviewing court will apply a Powell – Wheelus analysis (appellant need only show a “colorable showing of possible prejudice”). United States v. Hartfield , 53 M.J. 719, 720 (A. Ct. Crim. App. 2000).
No recommendation is needed for total acquittals or other final terminations without findings.This now includes findings of not guilty only by reason of lack of mental responsibility. See RCM 1106(e).