U.S. v. Scalo, 60 M.J. 435

Military Justice Personnel: Staff Judge Advocate: Post-TrialRecommendation

1. when a sentence includes a punitive discharge or confinement for one year or more, the convening authority must receive a written recommendation from his or her SJA before taking action on the case; the President has issued detailed guidance as to the material that must be set forth in the SJA’s recommendation, including a statement of the nature and duration of any pretrial restraint
2. the SJA’s recommendation plays a vital role in providing the convening authority with complete and accurate advice in the exercise of command discretion; accurate advice is particularly important in light of the fact that the convening authority is not required to review the record of trial personally before taking action
3. if defense counsel does not make a timely comment on an omission in the SJA’s recommendation, the error is waived unless it is prejudicial under a plain error analysis
4. in the context of a post-trial recommendation error, whether that error is preserved or is otherwise considered under the plain error doctrine, an appellant must make some colorable showing of possible prejudice

Military Justice Personnel: Convening Authority: Action

1. a distinguishing feature of the military justice system is the broad authority of the commander who convened a court-martial to modify the findings and sentence adjudged at trial; although frequently exercised as a clemency power, the commander has unfettered discretion to modify the findings and sentence for any reason -- without having to state a reason -- so long as there is no increase in severity
2. the low threshold for material prejudice with respect to an erroneous post-trial recommendation reflects the convening authority’s vast power in granting clemency and is designed to avoid undue speculation as to how certain information might impact the convening authority’s exercise of such broad discretion; the threshold is low, but there must be some colorable showing of possible prejudice
3. in the context of a convening authority’s exercise of post-trial discretion, the omission of pretrial restraint information is not inherently prejudicial; there must be a colorable showing of possible prejudice in terms of how the omission potentially affected an appellant’s opportunity for clemency

Trial Stages: Initial Review: Post-trial Recommendation

1. when a sentence includes a punitive discharge or confinement for one year or more, the convening authority must receive a written recommendation from his or her SJA before taking action on the case; the President has issued detailed guidance as to the material that must be set forth in the SJA’s recommendation, including a statement of the nature and duration of any pretrial restraint
2. the SJA’s recommendation plays a vital role in providing the convening authority with complete and accurate advice in the exercise of command discretion; accurate advice is particularly important in light of the fact that the convening authority is not required to review the record of trial personally before taking action
3. if defense counsel does not make a timely comment on an omission in the SJA’s recommendation, the error is waived unless it is prejudicial under a plain error analysis
4. in the context of a post-trial recommendation error, whether that error is preserved or is otherwise considered under the plain error doctrine, an appellant must make some colorable showing of possible prejudice

Trial Stages: Initial Review: Action

1. a distinguishing feature of the military justice system is the broad authority of the commander who convened a court-martial to modify the findings and sentence adjudged at trial; although frequently exercised as a clemency power, the commander has unfettered discretion to modify the findings and sentence for any reason -- without having to state a reason -- so long as there is no increase in severity
2. the low threshold for material prejudice with respect to an erroneous post-trial recommendation reflects the convening authority’s vast power in granting clemency and is designed to avoid undue speculation as to how certain information might impact the convening authority’s exercise of such broad discretion; the threshold is low, but there must be some colorable showing of possible prejudice
3. in the context of a convening authority’s exercise of post-trial discretion, the omission of pretrial restraint information is not inherently prejudicial; there must be a colorable showing of possible prejudice in terms of how the omission potentially affected an appellant’s opportunity for clemency

Trial Stages: Appeals: Harmless / Prejudicial Error

1. if defense counsel does not make a timely comment on an omission in the SJA’s recommendation, the error is waived unless it is prejudicial under a plain error analysis
2. in the context of a post-trial recommendation error, whether that error is preserved or is otherwise considered under the plain error doctrine, an appellant must make some colorable showing of possible prejudice
3. the low threshold for material prejudice with respect to an erroneous post-trial recommendation reflects the convening authority’s vast power in granting clemency and is designed to avoid undue speculation as to how certain information might impact the convening authority’s exercise of such broad discretion; the threshold is low, but there must be some colorable showing of possible prejudice
4. in the context of a convening authority’s exercise of post-trial discretion, the omission of pretrial restraint information is not inherently prejudicial; there must be a colorable showing of possible prejudice in terms of how the omission potentially affected an appellant’s opportunity for clemency
5. in this case, although appellant contended that knowledge of his pretrial restraint could have been the additional factor that would have persuaded the convening authority to grant clemency, he did not show any connection between the time he spent in pretrial restraint and his clemency request; the petition for clemency that appellant submitted to the convening authority highlighted appellant’s cooperation with authorities, acceptance of responsibility, and desire to witness the birth of his child; appellant did not directly or indirectly refer to the pretrial restraint or suggest that the convening authority should take it into account in considering clemency; moreover, the 44-day period of pretrial restraint was not of such unusual duration that there is a reasonable likelihood that the length alone -- without any mention by appellant -- would have attracted the convening authority’s attention for purposes of clemency; under these circumstances, appellant has not made a colorable showing of possible prejudice

Trial Stages: Appeals: Preservation of Error / Plain Error

1. if defense counsel does not make a timely comment on an omission in the SJA’s recommendation, the error is waived unless it is prejudicial under a plain error analysis
2. to prevail under a plain error analysis, appellant must persuade this Court that: (1) there was an error; (2) it was plain or obvious; and (3) the error materially prejudiced a substantial right
3. in the context of a post-trial recommendation error, whether that error is preserved or is otherwise considered under the plain error doctrine, an appellant must make some colorable showing of possible prejudice

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

1. if defense counsel does not make a timely comment on an omission in the SJA’s recommendation, the error is waived unless it is prejudicial under a plain error analysis; we conduct a de novo review of this issue
2. under the plain error analysis, appellant has the burden to establish that the error materially prejudiced a substantial right; in the context of a post-trial recommendation error, whether that error is preserved or is otherwise considered under the plain error doctrine, an appellant must make some colorable showing of possible prejudice

Trial Stages: Appeals: Waiver

1. if defense counsel does not make a timely comment on an omission in the SJA’s recommendation, the error is waived unless it is prejudicial under a plain error analysis