U.S. v. Hensley, 52 M.J. 391

Trial Stages: Initial Review: Post-trial Recommendation

1. despite concession that it was error for someone other than ship’s legal officer to prepare post-trial recommendation, this error did not amount to plain error; a post-trial recommendation from someone other than the ship’s legal officer does not materially prejudice a substantial right, because an accused does not have a right to a recommendation from a specific officer
2. although it was error for someone other than ship’s legal officer to prepare post-trial recommendation, defense counsel’s interaction with actual preparer of post-trial recommendation was akin to affirmative waiver where defense counsel called appellant’s clemency petition to the preparer’s attention and defense counsel did not challenge authority of preparer to prepare either the initial post-trial recommendation or the addendum
3. even assuming arguendo that it was plain error for someone other than ship’s legal officer to prepare post-trial recommendation, appellant was not prejudiced as to result where: (1) the actual preparer of the post-trial recommendation was qualified as a legal officer; (2) there was no forum shopping or other manipulation to influence the content of the recommendation; (3) the recommendation and addendum were legally correct; (4) the recommendation was prepared by an officer of greater experience than the ship’s legal officer; and, (5) appellant made no colorable showing that he would have received a more favorable recommendation from the ship’s legal officer

Trial Stages: Appeals: Preservation of Error / Plain Error

1. despite concession that it was error for someone other than ship’s legal officer to prepare post-trial recommendation, this error did not amount to plain error; a post-trial recommendation from someone other than the ship’s legal officer does not materially prejudice a substantial right, because an accused does not have a right to a recommendation from a specific officer