U.S. v. Miller, 82 M.J. 204

Trial Stages: Initial Review: Generally

1. under the procedural rules prior to January 1, 2019, the convening authority’s action was the final stage before the record was forwarded to the appellate court; in general, RCM 1104(b)(1)(A) (2016 ed) required the government to cause a copy of the record of trial to be served on the accused as soon as the record of trial was authenticated; the accused, then, had a minimum of ten days for submission of clemency matters; only then could the convening authority take action
2. the President made substantial changes to post-trial processing with the 2019 RCM; under the new procedural rules, an accused’s time line for submitting clemency matters begins when the sentence is announced, not when the record of trial is served on him or her, as the accused now has ten days from the announcement of sentence to submit matters for convening authority review; in addition, the record of trial is no longer a trigger for the time line to submit post-trial matters by the accused; instead, the only restrictions to the timing of the convening authority’s action, under the new rules, is that the convening authority consult with the staff judge advocate and consider any timely RCM 1106 clemency matters; any action by the convening authority must occur before entry of judgment by the military judge, and entry of judgment must occur before the court reporter certifies the record of trial; the convening authority’s decision on action can occur before the record of trial is complete
3. in this case, because the convening authority was not required to consider a complete record of trial prior to taking action, the nonexistence of a military judge's post-trial ruling at the time the convening authority acted is analyzed as a post-trial processing error rather than as a substantial omission from the record

Trial Stages: Initial Review: Preparation of Record of Trial

1. a complete record of the proceedings and testimony shall be prepared in each special court-martial case in which the sentence adjudged includes a bad-conduct discharge, confinement for more than six months, or forfeiture of pay for more than six months
2. a substantial omission renders a record of trial incomplete and raises a presumption of prejudice that the government must rebut
3. the President made substantial changes to post-trial processing with the 2019 RCM; under the new procedural rules, an accused’s time line for submitting clemency matters begins when the sentence is announced, not when the record of trial is served on him or her, as the accused now has ten days from the announcement of sentence to submit matters for convening authority review; in addition, the record of trial is no longer a trigger for the time line to submit post-trial matters by the accused; instead, the only restrictions to the timing of the convening authority’s action, under the new rules, is that the convening authority consult with the staff judge advocate and consider any timely RCM 1106 clemency matters; any action by the convening authority must occur before entry of judgment by the military judge, and entry of judgment must occur before the court reporter certifies the record of trial; the convening authority’s decision on action can occur before the record of trial is complete

Trial Stages: Initial Review: Post-trial Submissions

1. under the procedural rules prior to January 1, 2019, the convening authority’s action was the final stage before the record was forwarded to the appellate court; in general, RCM 1104(b)(1)(A) (2016 ed) required the government to cause a copy of the record of trial to be served on the accused as soon as the record of trial was authenticated; the accused, then, had a minimum of ten days for submission of clemency matters; only then could the convening authority take action
2. the President made substantial changes to post-trial processing with the 2019 RCM; under the new procedural rules, an accused’s time line for submitting clemency matters begins when the sentence is announced, not when the record of trial is served on him or her, as the accused now has ten days from the announcement of sentence to submit matters for convening authority review; in addition, the record of trial is no longer a trigger for the time line to submit post-trial matters by the accused; instead, the only restrictions to the timing of the convening authority’s action, under the new rules, is that the convening authority consult with the staff judge advocate and consider any timely RCM 1106 clemency matters; any action by the convening authority must occur before entry of judgment by the military judge, and entry of judgment must occur before the court reporter certifies the record of trial; the convening authority’s decision on action can occur before the record of trial is complete

Trial Stages: Initial Review: Action

1. under the procedural rules prior to January 1, 2019, the convening authority’s action was the final stage before the record was forwarded to the appellate court; in general, RCM 1104(b)(1)(A) (2016 ed) required the government to cause a copy of the record of trial to be served on the accused as soon as the record of trial was authenticated; the accused, then, had a minimum of ten days for submission of clemency matters; only then could the convening authority take action
2. the President made substantial changes to post-trial processing with the 2019 RCM; under the new procedural rules, an accused’s time line for submitting clemency matters begins when the sentence is announced, not when the record of trial is served on him or her, as the accused now has ten days from the announcement of sentence to submit matters for convening authority review; in addition, the record of trial is no longer a trigger for the time line to submit post-trial matters by the accused; instead, the only restrictions to the timing of the convening authority’s action, under the new rules, is that the convening authority consult with the staff judge advocate and consider any timely RCM 1106 clemency matters; any action by the convening authority must occur before entry of judgment by the military judge, and entry of judgment must occur before the court reporter certifies the record of trial; the convening authority’s decision on action can occur before the record of trial is complete
3. in this case, because the convening authority was not required to consider a complete record of trial prior to taking action, the nonexistence of a military judge’s post-trial ruling at the time the convening authority acted is analyzed as a post-trial processing error rather than as a substantial omission from the record
4. either party may file a post-trial motion within five days of receiving the convening authority’s action to address an asserted error in the convening authority’s action
5. in this case, where the trial defense counsel was served with a copy of the convening authority’s action but made no motion alleging error within five days, the failure to file a post-trial motion within the allotted time forfeited the accused’s right to object to the accuracy of the convening authority’s decision on an action, absent plain error
6. in determining whether to take action, or to decline taking action under RCM 1109, the convening authority shall consult with the staff judge advocate or legal advisor; and before taking or declining to take action on the sentence, the convening authority shall consider matters timely submitted by the accused, and may consider, inter alia, such other matters as the convening authority deems appropriate
7. under the new post-trial processing procedural rules with the 2019 RCM, the staff judge advocate’s review of the record and written recommendation have been done away with; RCM 1109(d)(2) (2019 ed) places no requirement on the staff judge advocate to review the record, or wait for a completed record, prior to consulting with the convening authority on his or her determination whether take action or decline to take action
8. in this case, where the convening authority consulted with the staff judge advocate prior to taking action, and where RCM 1109(d)(2) (2019 ed) placed no requirement on the staff judge advocate to review the record, or wait for a completed record prior to that consultation, the omission of the military judge’s post-trial written ruling from the record of trial prior to that consultation did not render the staff judge advocate’s recommendation uninformed
9. nothing in the new post-trial processing procedural rules with the 2019 RCM supports a finding that all substantive rulings of the military judge should exist before a convening authority determines whether to take action; RCM 1109(d)(2) and (d)(3) (2019 ed), only require that the convening authority consult with the staff judge advocate and consider an accused’s RCM 1106 clemency matters before deciding whether to act; the record of trial is not required to be complete at this stage of post-trial processing; an accused has the right to submit clemency matters, and the convening authority must consider the clemency matters; if an accused wants to ensure that the convening authority considers his post-trial confinement conditions, the appropriate place is to include it in his clemency request or to file a post-trial motion within five days of receiving the convening authority’s action

Trial Stages: Appeals: Preservation of Error / Plain Error

1. plain error occurs when (1) there is error, (2) the error is plain or obvious, and (3) the error results in material prejudice to a substantial right of the accused; to meet this burden in the context of a post-trial recommendation error, whether the error is preserved or is otherwise considered under the plain error doctrine, an accused must make some colorable showing of possible prejudice

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

1. whether a record of trial is complete is a question of law that an appellate court reviews de novo
2. the standard of review for determining whether post-trial processing was properly completed is de novo
3. plain error occurs when (1) there is error, (2) the error is plain or obvious, and (3) the error results in material prejudice to a substantial right of the accused; to meet this burden in the context of a post-trial recommendation error, whether the error is preserved or is otherwise considered under the plain error doctrine, an accused must make some colorable showing of possible prejudice