U.S. v. Frederickson, 63 M.J. 55

Trial Stages: Initial Review: Post-trial Recommendation

1. the findings and sentence of a court-martial are subject to review by the convening authority; if the case was tried before a general court-martial or before a special court-martial in which a bad-conduct discharge could be adjudged, the convening authority must obtain the recommendation of his SJA before taking action on the results of the trial; prior to submitting the recommendation to the convening authority, the SJA must serve it on the accused and defense counsel for the opportunity to comment; after the defense has had an opportunity to comment, the SJA may supplement the recommendation in an addendum; if the addendum contains new matter, the addendum must be served on the accused and defense counsel, who then have an opportunity to comment on the addendum; CAAF has not attempted to develop a comprehensive definition of new matter
2. the failure to serve new matter contained in an SJAR addendum on the defense is not prejudicial if the new matter is neutral, neither derogatory nor adverse to appellant, or if it is so trivial as to be nonprejudicial
3. appellant did not make a colorable showing of prejudice from the failure of the SJA to serve the defense with new matter contained in the SJAR addendum where the proffered defense responses to the new matter only reiterated what the defense previously submitted to the convening authority during the post-trial proceedings; under the circumstances of this case, where the addendum provided a detailed summary of the defense submission, the loss of opportunity for repetition of the defense submission did not demonstrate that service of the addendum on the defense could have produced a different result
4. SJAs can preclude unnecessary appellate litigation by providing convening authorities with SJAR addenda only when necessary and by broadly construing the term new matter for purposes of providing servicemembers with an opportunity to respond to addenda

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

1. if an appellant makes some colorable showing of possible prejudice for the SJA’s failure to serve new matter in an SJAR addendum on the defense, an appellate court will give that appellant the benefit of the doubt and it will not speculate on what the convening authority might have done if defense counsel had been given an opportunity to comment; the burden is on an appellant to demonstrate prejudice by stating what, if anything, would have been submitted to deny, counter, or explain the new matter; although the threshold is low, an appellant must demonstrate that the proffered response to the unserved addendum could have produced a different result