Recent developments in post-trial: failure to demand speedy post-trial processing equals waiver of Collazo relief for "unreasonable" post-trial delay

"[P]ost-trial processing is not rocket science, and careful proof reading of materials presented to the convening authority, rather than inattention to detail, would save time and effort for all concerned." (1)

Introduction

Unlike the 2001-2002 term of the Court of Appeals for the Armed Services (CAAF), which decided United States v. Emminizer (2) and United States v. Tardif, (3) the former addressing the proper processing of adjudged and automatic forfeitures and the latter differentiating between a service court's authority under Article 59, Uniform Code of Military Justice (UCMJ), and Article 66, UCMJ, to grant sentence relief for post-trial processing delay, this past term is best described as a relatively slow period in post-trial evolution. Both the service courts and the CAAF, however, continued to remain active in the post-trial arena, due in large part to inattention to detail by those responsible for post-trial processing. The most significant activity appears to be the Army court's decision to ratchet back its philosophy of granting Collazo (4) relief for dilatory post-trial processing, placing responsibility on the defense to demand speedy post-trial processing.

This article outlines the recent developments in post-trial activity, developments discussed under the following headings: the staff judge advocate's (SJA) recommendation, required contents and errors therein; service of the SJA's recommendation; new matter and the addendum to the SJA's recommendation; post-trial punishment; post-trial delay; the proper convening authority (CA); disqualification of the CA; post-trial assistance of counsel; and appellate court authority.

The SJA's Recommendation, Required Contents and Errors Therein--Rule for Courts-Martial (RCM) 1106(d)(3) and 1106(f)(6) (5)

Before taking action in a general court-martial (GCM) or a special court-martial (SPCM) in which the adjudged sentence includes a bad conduct discharge or confinement for one year, the CA's SJA is required to provide the CA with a written post-trial recommendation. (6) The SJA's recommendation (SJAR) must include the following:

(A) The findings and sentence adjudged by the court-martial;

(B) A recommendation for clemency by the sentencing authority, made in conjunction with the announced sentence;

(C) A summary of the accused's service record, to include length and character of service, awards and decorations received, and any records of nonjudicial punishment and previous convictions;

(D) A statement of the nature and duration of any pretrial restraint;

(E) If there is a pretrial agreement, a statement of any action the CA is obligated to take under the agreement or a statement of the reasons why the CA is not obligated to take specific action under the agreement; and

(F) A specific recommendation as to the action to be taken by the CA on the sentence. (7)

In United States v. Wellington, (8) the SJAR stated, in part: "Prior Art. 15s: Field Grade Article 15 for underage drinking, assault consummated by a battery, and drunk and disorderly at Travis Air Force Base. Punishment imposed on 24 Jul 98. Field Grade Article 15 for failure to obey lawful order. Punishment imposed on 14 Dec 98." (9) The SJAR also stated that the appellant was not subject to any pretrial restraint. (10) Both assertions were wrong; the appellant never received nonjudicial punishment and was restricted prior to trial, restriction the appellant argued at trial was tantamount to confinement. (11) Neither the appellant nor his defense counsel, after being served the SJAR, (12) mentioned the errors in their clemency submissions. (13) Their submissions did, however, renew the argument made at trial that the appellant's restriction was tantamount to confinement warranting sentence credit. (14) Despite the defense's allegation of an entitlement to Mason (15) credit, the SJA's addendum to the SJAR was silent regarding the appellant's restriction and failed to correct the errors in the SJAR. (16)

In reviewing whether the appellant was prejudiced by the defective SJAR, the CAAF looked to the waiver provision of RCM 1106(f)(6): (17) "Where, as in this case, the SJAR is served on the defense counsel and accused in accordance with R.C.M. 1106(f)(1), and the defense fails to comment on any matter in the recommendation, R.C.M. 1106(f)(6) provides that any error is waived unless it rises to the level of plain error." (18) Applying a plain error analysis, the court found that the errors were both "clear" and "obvious" and that the error prejudiced the appellant. The court noted that despite a service record lacking in any disciplinary action, the SJAR "portrayed [the appellant] as a mediocre soldier who had twice received punishment from a field grade officer." (19) The CAAF also found that the "[a]ppellant's 'best hope for sentence relief' was dashed by the inaccurate portrayal of his service record." (20) Finding plain error in the defective SJAR, the court affirmed the lower court's decision as to findings but set aside the sentence, remanding the case for a new SJAR and action. (21)