U.S. v. Williams, 57 M.J. 1

Trial Stages: Initial Review: Post-trial Recommendation

1. service of the SJA’s recommendation on the accused’s counsel is a critical part of the accused’s post-trial representation
2. the service requirement in Article 60(d), UCMJ, was designed to eliminate delays encountered in claims of error in post-trial reviews and the exhaustion of appellate resources when such error could easily and expeditiously be resolved prior to the convening and supervisory authorities’ actions
3. when a staff judge advocate fails to serve on the defense a copy of the post-trial recommendation, an appellant must demonstrate prejudice by stating what, if anything, would have been submitted to deny, counter, or explain the new matter, but the threshold should be low, and if an appellant makes some colorable showing of possible prejudice, appellant will receive the benefit of the doubt and the Court speculate on what the convening authority might have done if defense counsel had been given an opportunity to comment
4. the essence of post-trial practice is basic fair play — notice and an opportunity to respond; an appellant has the right to have his counsel served the SJA’s post-trial recommendation and the attendant right to respond to the a failure to include a military judge’s favorable recommendation in its entirety