U.S. v. Brown, 54 M.J. 289

First Principles: Constitutional Matters: Due Process

1. Court of Appeals for the Armed Forces declined to determine whether the convening authority is required to receive an SJA’s recommendation before acting on a request to defer the effective date of forfeitures or to waive automatic forfeiture of pay, as well as whether that recommendation must be served on the accused; but court leaves to the Executive Branch to consider whether, as a matter of law or policy, and consistent with due process considerations, such requests to the convening authority should be followed by a recommendation from the SJA and service on the accused with an opportunity to respond

Trial Stages: Sentence and Punishment: Forfeitures › Generally

1. although the Court of Appeals for the Armed Forces declined to determine whether the convening authority is required to receive an SJA’s recommendation (served on the defense for comment) before acting on a request to defer the effective date of forfeitures or to waive automatic forfeiture of pay, the court holds that, even if appellant was entitled to notice and an opportunity to comment on such an SJA’s advice, appellant failed to make a colorable showing of prejudice as a result of this alleged post-trial error

Trial Stages: Initial Review: Post-trial Recommendation

1. although the Court of Appeals for the Armed Forces declined to determine whether the convening authority is required to receive an SJA’s recommendation (served on the defense for comment) before acting on a request to defer the effective date of forfeitures or to waive automatic forfeiture of pay, the court holds that, even if appellant was entitled to notice and an opportunity to comment on an SJA’s advice, appellant failed to make a colorable showing of prejudice as a result of this alleged post-trial error
2. Court of Appeals for the Armed Forces declined to determine whether the convening authority is required to receive an SJA’s recommendation before acting on a request to defer the effective date of forfeitures or to waive automatic forfeiture of pay, as well as whether that recommendation must be served on the accused; but court leaves to the Executive Branch to consider whether, as a matter of law or policy, and consistent with due process considerations, such requests to the convening authority should be followed by a recommendation from the SJA and service on the accused with an opportunity to respond
3. to determine whether an erroneous failure to serve new matter on the defense constitutes prejudicial error, the burden is on the appellant to demonstrate prejudice by stating what, if anything, would have been submitted to deny, counter, or explain the new matter; the threshold is low, requiring only some colorable showing of possible prejudice, but that threshold is not met by sheer speculation about factual matters that are within the normal investigative capabilities of counsel

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

1. to determine whether an erroneous failure to serve new matter on the defense constitutes prejudicial error, the burden is on the appellant to demonstrate prejudice by stating what, if anything, would have been submitted to deny, counter, or explain the new matter; the threshold is low, requiring only some colorable showing of possible prejudice, but that threshold is not met by sheer speculation about factual matters that are within the normal investigative capabilities of counsel