U.S. v. Gilbreath, 57 M.J. 57

Trial Stages: Initial Review: Post-trial Recommendation

1. RCM 1106(f)(7) authorizes the staff judge advocate to submit an addendum to his post-trial recommendation to the convening authority; however, the rule also requires service of that addendum on the defense if the addendum includes “new matter” and allows comment by the defense on that new matter
2. staff judge advocate’s addendum presented “new matter” within the meaning of RCM 1106(f)(7) when it implied, in a trial by judge alone, that the members of appellant’s court-martial had already considered the post-trial clemency matters submitted by the defense and found them unpersuasive, and that the commander should defer to their decision
3. addendum to the SJA recommendation contained an error in that the staff judge advocate erroneously advised the convening authority that a “jury,” rather than a judge, had determined an appropriate sentence for appellant
4. failure to serve an addendum with this particular type of new matter in it prejudiced appellant; the new matter implied, in a trial by judge alone, that the members of appellant’s court-martial had already considered the clemency matters submitted by the defense and found them unpersuasive, and that the commander should defer to their decision
5. where erroneous post-trial reviews are involved, a showing of actual prejudice is not required to secure appellate relief; an appellant only has a burden to make some colorable showing of possible prejudice by stating what, if anything, would have been submitted to deny, counter, or explain the new matter that could have produced a different result
6. a new review and action were required where potentially pivotal new matter was contained in an unserved SJA addendum to the post-trial recommendation, and a response to this new matter could have produced a different result; defense counsel could have pointed out the faulty factual premises on which the staff judge advocate’s recommendation against clemency were based and made a persuasive argument that the staff judge advocate’s recommendation to defer to the judgement of the non-existent court members was also legally improper
7. addendum to SJA post-trial recommendation contained new matter which was erroneous and/or misleading: (1) it wrongly asserted that those members selected for court-martial duty by the convening authority had already considered the defense clemency materials and found them unpersuasive; (2) it further suggested that the convening authority should defer to those members’ judgment on sentence; (3) it conceivably suggested that the convening authority not provide the independent and fresh look by command authorities required by Article 60, UCMJ, 10 USC § 860; and (4) in a guilty plea tried by judge alone, the convening authority, perhaps inadvertently, was misled into believing that the officers he had selected to pass judgment in this case rejected the merits of appellant’s clemency
8. appellate court will not speculate on what the convening authority would have done had defense counsel been properly served with the addendum and allowed to respond; rather the test is whether appellant can make some colorable showing of possible prejudice by stating what, if anything, would have been submitted to deny, counter, or explain the new matter that could have produced a different result