U.S. v. Scott, 66 M.J. 1

Military Justice Personnel: Staff Judge Advocate: Post-TrialRecommendation

1. the initial SJAR must be served upon trial defense counsel and the defendant; defense counsel may then submit comments on the SJAR; in turn, the SJA has the opportunity to supplement the SJAR in the form of an addendum SJAR; if the addendum contains new matter, it must be served on the accused and counsel for the accused
2. nothing precludes an SJAR addendum from being served on accused and counsel, even when it does not contain new matter; such transparency may preclude appeals
3. new matter is not defined in the MCM, and a comprehensive definition of new matter has not been provided; however, the non-binding Discussion to the MCM provides guidance and its illustrations of what is and is not a new matter have been cited with approval; the Discussion provides that new matter includes discussion of the effect of new decisions on issues in the case, matter from outside the record of trial, and issues not previously discussed; new matter does not ordinarily include any discussion by the SJA or legal officer of the correctness of the initial defense comments on the recommendation
4. where the SJAR addendum stated that the members had the benefit of personally hearing the evidence and determined that the sentence was appropriate, it did not contain new matter; noting that the members had determined that five years of confinement was appropriate after hearing all of the evidence in the case was not news, and thus not new matter; the statements in question were not news to the convening authority, who presumptively knew that members heard the case, as he referred the case and detailed members to it via his convening order; and the statements did not invite the convening authority to defer to the members because they had already heard the evidence in appellant’s case and were not persuaded that a lower sentence was appropriate; being told that members arrived at the sentence after hearing all the evidence hardly invites the convening authority to shirk his duty to take action pursuant to RCM 1107
5. an SJAR addendum accurately referencing the fact that the court-martial heard evidence before imposing a sentence, without more, does not constitute new matter
6. an SJAR addendum that actually invited the convening authority to abdicate his duties because the trier of fact had reviewed all clemency materials, whether true or not, would be new matter within the meaning of RCM 1106(f)(7)
7. in this case, the SJAR addendum stated nothing new and the information contained therein was not erroneous, inadequate, or misleading; instead, it merely stated an obvious fact in the course of advising the convening authority on the correctness of the initial defense comments on the recommendation - that the members had the benefit of personally hearing the evidence and determined that the sentence was appropriate; RCM 1106(f)(7) does not extend to encompass such statements; thus, failure to serve the addendum on defense counsel did not necessitate a new convening authority’s action

Military Justice Personnel: Convening Authority: Clemency

1. the convening authority is presumed to know the difference between clemency materials and evidence adduced at trial

Trial Stages: Initial Review: Post-trial Recommendation

1. the initial SJAR must be served upon trial defense counsel and the defendant; defense counsel may then submit comments on the SJAR; in turn, the SJA has the opportunity to supplement the SJAR in the form of an addendum SJAR; if the addendum contains new matter, it must be served on the accused and counsel for the accused
2. nothing precludes an SJAR addendum from being served on accused and counsel, even when it does not contain new matter; such transparency may preclude appeals
3. new matter is not defined in the MCM, and a comprehensive definition of new matter has not been provided; however, the non-binding Discussion to the MCM provides guidance and its illustrations of what is and is not a new matter have been cited with approval; the Discussion provides that new matter includes discussion of the effect of new decisions on issues in the case, matter from outside the record of trial, and issues not previously discussed; new matter does not ordinarily include any discussion by the SJA or legal officer of the correctness of the initial defense comments on the recommendation
4. where the SJAR addendum stated that the members had the benefit of personally hearing the evidence and determined that the sentence was appropriate, it did not contain new matter; noting that the members had determined that five years of confinement was appropriate after hearing all of the evidence in the case was not news, and thus not new matter; the statements in question were not news to the convening authority, who presumptively knew that members heard the case, as he referred the case and detailed members to it via his convening order; and the statements did not invite the convening authority to defer to the members because they had already heard the evidence in appellant’s case and were not persuaded that a lower sentence was appropriate; being told that members arrived at the sentence after hearing all the evidence hardly invites the convening authority to shirk his duty to take action pursuant to RCM 1107
5. an SJAR addendum accurately referencing the fact that the court-martial heard evidence before imposing a sentence, without more, does not constitute new matter
6. an SJAR addendum that actually invited the convening authority to abdicate his duties because the trier of fact had reviewed all clemency materials, whether true or not, would be new matter within the meaning of RCM 1106(f)(7)
7. in this case, the SJAR addendum stated nothing new and the information contained therein was not erroneous, inadequate, or misleading; instead, it merely stated an obvious fact in the course of advising the convening authority on the correctness of the initial defense comments on the recommendation - that the members had the benefit of personally hearing the evidence and determined that the sentence was appropriate; RCM 1106(f)(7) does not extend to encompass such statements; thus, failure to serve the addendum on defense counsel did not necessitate a new convening authority’s action

Trial Stages: Initial Review: Clemency

1. the convening authority is presumed to know the difference between clemency materials and evidence adduced at trial

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

1. whether matters contained in an addendum to the SJAR constitute new matter that must be served upon an accused is a question of law that is reviewed de novo