U.S. v. Capers, 62 M.J. 268

Trial Stages: Initial Review: Post-trial Recommendation

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

Trial Stages: Appeals: Harmless / Prejudicial Error

1. with respect to an error in an SJA’s post-trial recommendation, the prejudice prong involves a relatively low threshold -- a demonstration of some colorable showing of possible prejudice; although the colorable showing threshold is low, the prejudice must bear a reasonable relationship to the error, and it must involve a reasonably available remedy
2. given his inability to identify a reasonably available alternative remedy related to the SJA’s erroneous advice with respect to forfeitures, appellant failed to make 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 error or omission in the SJA’s post-trial recommendation, the error is waived unless it is prejudicial under a plain error analysis; an appellate court must then determine whether there was error, whether it was plain, and whether it materially prejudiced a substantial right of the accused
2. the SJA’s recommendation to the convening authority that he suspend adjudged forfeitures and waive automatic forfeitures for the benefit of appellant’s family constituted a plain and obvious error where appellant had completed his period of obligated service, was sentenced to confinement, and thus was not entitled to compensation

Trial Stages: Appeals: Law of the Case

1. with respect to an error in an SJA’s post-trial recommendation, the prejudice prong involves a relatively low threshold -- a demonstration of some colorable showing of possible prejudice; although the colorable showing threshold is low, the prejudice must bear a reasonable relationship to the error, and it must involve a reasonably available remedy
2. given his inability to identify a reasonably available alternative remedy related to the SJA’s erroneous advice with respect to forfeitures, appellant failed to make a colorable showing of possible prejudice

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

1. with respect to an error in an SJA’s post-trial recommendation, the prejudice prong involves a relatively low threshold -- a demonstration of some colorable showing of possible prejudice; an appellate court’s review is de novo

Trial Stages: Appeals: Waiver

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