Court-Martial Trial Practice Blog
There’s something for everyone out of a number of Navy and Coast Guard cases.
Defense Counsel.
When the military judge wrongly announces a sentence which will inure to your client’s benefit, generally you should keep you mouth shut. But, once you get the SJAR, double check the SJAR against the record. See United States v. Spears below. My perception is there is an increase in the number of error in SJAR’s which the trial defense counsel has failed to comment on. I posted on United States v. Newby yesterday. So what you say, he got relief, good for him. The appellant in Spears will now have a lot of trouble dealing with DFAS to get back the unauthorized forfeitures that’s the problem now. Whereas if the issue had been caught at the time of the SJAR it might have been easier to resolve. Yes I know there are many SJA’s out there who would have pressed forward with the erroneous advice anyway.
In United States v. Van Valin, despite the ongoing litigation about the admission of drug lab reports the defense did not object to any of the paper evidence in this case. AFCCA expressly found that waiver did not apply.
Look at Sanchez, supra:
Trial defense counsel did not submit any comments or objections concerning the SJAR.
CGCCA resolved the issue in appellant’s favor finding plain error, thus not having to reach an IAC issue. And yes the court cites to United States v. Demerse, 37 M.J. 488 (C.M.A. 1993). Kronish where are you?
Trial Counsel.
One of the trial counsel’s jobs is to protect the record. AFCCA’s finding of error in United States v. Spears is not unusual. The military judge announced the following sentence:
Though not raised as an issue, we note that the military judge, in announcing the forfeiture portion of the sentence, announced “Airman Basic Marcus Spears, this court sentences you . . . [t]o forfeit $300 of your pay for 7 months; . . . .” (Emphasis added).
On 5 November 2009, the convening authority approved, inter alia, forfeiture of “$300 pay per month for 7 months.” (Emphasis added). “[A] sentence to forfeiture shall state the exact amount in whole dollars to be forfeited each month and the number of months the forfeitures will last.” Rule for Courts-Martial 1003(b)(2); see also United States v. Gaston, 62 M.J. 404, 408 (C.A.A.F. 2006); United States v. Johnson, 32 C.M.R. 127, 128 (C.M.A. 1962).
So on appeal the AFCCA identified the issue during its review of a merits submission and:
Because the announced forfeiture amount does not include the words “per month,” we find that the approved sentence is erroneous and that the forfeiture amount announced shall be the total amount to be forfeited. See United States v. Walker, 9 M.J. 892, 892-93 (A.F.C.M.R. 1980) (citing Johnson, 32 C.M.R. 127; United States v. Smith, 43 C.M.R. 660 (A.C.M.R. 1971)); United States v. Nimmons, 59 M.J. 550, 550 (N.M. Ct. Crim. App. 2003); United States v. Burkett, 57 M.J. 618, 620-21 (C.G. Ct. Crim. App. 2002).
There would have been nothing wrong in this case for the TC to politely ask the MJ to clarify the forfeiture amount and terms intended.
Military judge.
In United States v. Gardner, the issue was credit for pretrial confinement.
The appellant was placed on pretrial restriction from 19 February to 15 May 2009. Record at 264-66. On 15 May 2009, the appellant broke restriction and was placed in pretrial confinement, where he remained until 19 June 2009, when he was tried and sentenced for the assaults that are the subject of this litigation. Id. During sentencing, the defense counsel argued that the 35-day pretrial confinement term should be applied toward any adjudged sentence of confinement. Id. The military judge denied the request, ruling that the pretrial confinement stemmed from charges of breaking restriction, and that credit could be applied toward a sentence on those charges.1 Id at 266. The military judge recognized that there remained unaccounted for pretrial confinement, but speculated, at his peril, that further proceedings would absorb the additional detention. In so doing, the military judge erred.
Staff Judge Advocate.
In United States v. Sanchez, the issue is what should go in the post-trial SJAR.
Before this Court, Appellant has assigned as error that Appellant was prejudiced by an erroneous Staff Judge Advocate’s Recommendation that failed to include his length and character of service, and misled the convening authority. We agree, and remand the record for a new Staff Judge Advocate’s Recommendation and Convening Authority’s action.