United States v. Newby has been decided and has a reminder for trial defense counsel.
The military judge made a clemency recommendation.
The SJAR failed to note the clemency recommendation.
The TDC failed to comment on the SJAR failure.
Phew! And here’s why.
Before this court, Appellant has assigned as error that Appellant was prejudiced by the omission of mention of the military judge’s recommendation for clemency in the Staff Judge Advocate’s Recommendation (SJAR).
After announcing the sentence, the military judge recommended on the record that the Convening Authority suspend the bad-conduct discharge for a period of thirty-six months[.]
Part II of the pretrial agreement contained a suspension provision, requiring the Convening Authority to suspend a punitive discharge for six months, at which point, unless sooner vacated, it would be remitted.
So now post-trial
Post-trial, neither the SJAR nor the SJAR Addendum mentioned the military judge’s recommendation.
Trial defense counsel did not comment on the thirty-six-month suspension recommendation in his Rule for Courts-Martial (R.C.M.) 1105, Manual for Courts-Martial, United States (2008 ed.) submission. R.C.M. 1106(f)(6) provides, ―Failure 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.‖ If defense counsel does not make a timely comment on an omission in the SJAR, the error is waived in the absence of plain error. United States v. Halsey, 62 M.J. 681, 683 (C.G.Ct.Crim.App. 2006); United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000).
There’s more to read, but in this case there was plain error because regardless of TDC opportunity to comment the SJA is required to comment on a sentencer clemency recommendation, and in this case the appellant did better than the MJ recommendation.
The better practice is still for the TDC to make the point. On appeal the appellate counsel made this argument.
Appellant argues that he was prejudiced because the military judge’s ―unusual recommendation‖ was a strong message that he saw redeeming qualities in Appellant. He also contends that if the Convening Authority knew the military judge’s recommendation, then the Convening Authority might have decided to retain rather than administratively discharge Appellant1 or grant some other relief.
That argument didn’t sway CGCCA. But, what if it had been made to the CA post-trial? If the TDC had taken the point and argued it might there have been a different result. Methinks unlikely, but it should have been worth the effort.