U.S. v. Lowe, 58 M.J. 261

Trial Stages: Initial Review: Post-trial Recommendation

1. the text of RCM 1106(f)(1) is plain; the intent is clear; the staff judge advocate’s recommendation is required to be served on trial defense counsel before the convening authority takes action; this affords the accused an opportunity to communicate with the convening authority on the question of clemency and other post-trial matters at the same time the Government is heard; in this manner, the convening authority has the benefit of information received through the adversarial process before he or she acts
2. the purpose of the service requirement in RCM 1106(f)(1) was 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

Trial Stages: Initial Review: Post-trial Submissions

1. the text of RCM 1106(f)(1) is plain; the intent is clear; the staff judge advocate’s recommendation is required to be served on trial defense counsel before the convening authority takes action; this affords the accused an opportunity to communicate with the convening authority on the question of clemency and other post-trial matters at the same time the Government is heard; in this manner, the convening authority has the benefit of information received through the adversarial process before he or she acts
2. Article 60, UCMJ, provides the accused the right to submit matters for the convening authority’s consideration within 10 days after the accused has been given an authenticated record of trial and, if applicable, the recommendation of the staff judge advocate; thus the fact that appellant may have had time prior to service of the recommendation to submit matters is of little moment as long as the statute provided him a period of time, as a matter of right, to submit matters related to clemency after the recommendation was served upon him
3. while a convening authority has broad discretion whether or not to grant clemency, R.C.M. 1106(f) gives the accused a right to be served with the SJAR in a timely manner; CAAF is not persuaded that so long as an accused could have been heard before or after the convening authority acted, he waives objection to a violation of R.C.M. 1106(f); the opportunity to be heard before or after the convening authority considers his action on the case is simply not qualitatively the same as being heard at the time a convening authority takes action, anymore than the right to seek reconsideration of an appellate opinion is qualitatively the same as being heard on the initial appeal
4. the essence of post-trial practice is basic fair play -- notice and an opportunity to respond; where the Government has not complied with R.C.M. 1106(f), the outcome in such a case hinges on whether appellant has made a colorable showing of possible prejudice
5. in cases involving the failure to serve the SJAR on defense counsel, if an appellant makes some colorable showing of possible prejudice, CAAF will give that appellant the benefit of the doubt and will not speculate on what the convening authority might have done if defense counsel had been given an opportunity to comment
6. by definition, assessments of prejudice during the clemency process are inherently speculative; prejudice, in a case involving clemency, can only address possibilities in the context of an inherently discretionary act; therefore, the question for CAAF and the CCAs is not whether we, individually or collectively, would have granted clemency to Appellant, but whether Appellant had a fair opportunity to be heard on clemency before the convening authority, vested with discretion, acted in his case; where an Appellant makes a colorable showing that he was denied the opportunity to put before the convening authority matters that could have altered the outcome, CAAF and the CCAs will not speculate as to what the convening authority would have done

Trial Stages: Initial Review: Action

1. the text of RCM 1106(f)(1) is plain; the intent is clear; the staff judge advocate’s recommendation is required to be served on trial defense counsel before the convening authority takes action; this affords the accused an opportunity to communicate with the convening authority on the question of clemency and other post-trial matters at the same time the Government is heard; in this manner, the convening authority has the benefit of information received through the adversarial process before he or she acts
2. Article 60, UCMJ, provides the accused the right to submit matters for the convening authority’s consideration within 10 days after the accused has been given an authenticated record of trial and, if applicable, the recommendation of the staff judge advocate; thus the fact that appellant may have had time prior to service of the recommendation to submit matters is of little moment as long as the statute provided him a period of time, as a matter of right, to submit matters related to clemency after the recommendation was served upon him
3. while a convening authority has broad discretion whether or not to grant clemency, R.C.M. 1106(f) gives the accused a right to be served with the SJAR in a timely manner; CAAF is not persuaded that so long as an accused could have been heard before or after the convening authority acted, he waives objection to a violation of R.C.M. 1106(f); the opportunity to be heard before or after the convening authority considers his action on the case is simply not qualitatively the same as being heard at the time a convening authority takes action, anymore than the right to seek reconsideration of an appellate opinion is qualitatively the same as being heard on the initial appeal
4. the essence of post-trial practice is basic fair play -- notice and an opportunity to respond; where the Government has not complied with R.C.M. 1106(f), the outcome in such a case hinges on whether appellant has made a colorable showing of possible prejudice
5. in cases involving the failure to serve the SJAR on defense counsel, if an appellant makes some colorable showing of possible prejudice, CAAF will give that appellant the benefit of the doubt and will not speculate on what the convening authority might have done if defense counsel had been given an opportunity to comment
6. by definition, assessments of prejudice during the clemency process are inherently speculative; prejudice, in a case involving clemency, can only address possibilities in the context of an inherently discretionary act; therefore, the question for CAAF and the CCAs is not whether we, individually or collectively, would have granted clemency to Appellant, but whether Appellant had a fair opportunity to be heard on clemency before the convening authority, vested with discretion, acted in his case; where an Appellant makes a colorable showing that he was denied the opportunity to put before the convening authority matters that could have altered the outcome, CAAF and the CCAs will not speculate as to what the convening authority would have done
7. RCM 1107(f)(2) allows the convening authority to recall and modify his action prior to forwarding the record for Article 66 review; however, this is a rule that permits the Government as well as an accused to seek modification of an action; where there is a failure to comply with RCM 1106(f), a more expeditious course would be to recall and modify the action rather than resort to three years of appellate litigation; the former would appear to be more in keeping with principles of judicial economy and military economy of force
8. the purpose of the service requirement in RCM 1106(f)(1) was 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