U.S. v. Pfister, 53 M.J. 158

Trial Stages: Initial Review: Post-trial Recommendation

1. where defense counsel was served a copy of a victim impact statement on October 30, and action was taken on December 5, there was more than adequate opportunity for defense counsel to prepare rebuttal to the statement, and the failure to do so constituted waiver: (1) the period of time was 33 days; (2) during this time defense counsel submitted a second clemency petition; (3) defense counsel filed a petition for extraordinary relief and for a stay of post-trial proceedings, and filed a supporting brief at the Court of Criminal Appeals; (4) defense counsel did not seek a further extension, as required, despite having filed a petition for extraordinary relief
2. there was no plain error to overcome waiver resulting from defense counsel’s failure to comment on new matter served in an addendum to the post-trial recommendation where, 33 days later, there was no clear or obvious error in the convening authority’s decision to take action without rebuttal to this new matter

Trial Stages: Appeals: Preservation of Error / Plain Error

1. there was no plain error to overcome waiver resulting from defense counsel’s failure to comment on new matter served in an addendum to the post-trial recommendation where, 33 days later, there was no clear or obvious error in the convening authority’s decision to take action without rebuttal to this new matter