U.S. v. Anderson, 53 M.J. 374

Trial Stages: Initial Review: Post-trial Recommendation

1. a small note, written by the chief of staff to the convening authority and clipped to appellant’s clemency submission, was attached in error as it did not constitute supplementation of a post-trial recommendation by any officer with authority to supplement a post-trial recommendation. RCM 1106(f)(7)
2. a small note, written by the chief of staff to the convening authority and clipped to appellant’s clemency submission, was new matter within the meaning of RCM 1106(f)(7) which must be served upon the accused and defense counsel for comment: (1) the note was an opinion on appellant’s character submitted after the SJA’s recommendation had been served and signed for by appellant; (2) the comments in the note were made after appellant had submitted a request for clemency; and (3) the comments were made by an officer who did not testify at trial and whose stature suddenly became an issue in the case
3. a small note, written by the chief of staff to the convening authority and clipped to appellant’s clemency submission, which indicated that appellant was a “thug” who was “lucky” he did not kill the victim, was adverse matter from outside the record which the accused was to be afforded the opportunity to rebut under RCM 1107(b)
4. to demonstrate that new or adverse matter considered by the convening authority was prejudicial, appellant must show what he would have submitted to deny, counter, or explain the new matter; the threshold is low, however, and the appellate court will not speculate on what the convening authority might have done if the defense counsel had been given the opportunity to comment
5. (appellant met the low threshold burden of making a colorable showing of prejudice from new or adverse matter considered by the convening authority where appellate counsel proffered that: (1) appellant would have contested his characterization as a “thug” in the new matter; (2) appellant would have factually challenged the assertion in the new matter that the victim was almost killed; and (3) appellant received no clemency from the convening authority for a near maximum sentence

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. to demonstrate that new or adverse matter considered by the convening authority was prejudicial, appellant must show what he would have submitted to deny, counter, or explain the new matter; the threshold is low, however, and the appellate court will not speculate on what the convening authority might have done if the defense counsel had been given the opportunity to comment