Thursday, August 16, 2007

Can we all please agree to serve the addendum SJAR on the DC?

When I was an appellate defense counsel, I made a cottage industry of challenging SJAs' failure to serve addendum SJARs on the defense before the CA acted. And the Navy-Marine Corps Court made a cottage industry of concocting unpersuasive rationales for why it was okay for the SJA to have the last word without giving the defense any opportunity for rebuttal. Now, as happens from time to time, CAAF is weighing in on whether failure to serve an addendum SJAR on the defense counsel was reversible error.

In its most recent daily journal update, CAAF grants review of the following issue: "Whether the addendum to the staff judge advocate's recommendation contains 'new matter' not provided to defense counsel for comment, necessitating a new convening authority action in this case." United States v. Scott, __ M.J. ___, No. 07-0597/AF (C.A.A.F. Aug. 15, 2007).

Let's consider the case of Senior Airman Scott. On 31 August 2005, he was sentenced to, among other punishments, a DD and five years of confinement. See United States v. Scott, No. ACM 36514 (A.F. Ct. Crim. App. March 28, 2007). The only offense that the Air Force Court actually tells us he was convicted of is a Privacy Act violation. Let's hope he did more than that to get a five-year sentence. But whatever he did, AFCCA knocked his sentence down to four years. So Scott is now coming up on the half-way point of his sentence. There's a pretty good chance that he's out of confinement by now. But for the addendum SJAR issue in his case, it would probably be final by now and the Air Force would have executed his discharge.

BUT because the SJA at Davis-Monthan Air Force Base decided not to serve the addendum SJAR on the defense counsel, the case lives on. CAAF probably won't decide the case until March 2008 at the earliest. The mandate won't issue until 20 days later. So as a best-case scenario, Scott will stay on the Air Force's rolls for an extra 8 months. But what if CAAF reverses the Air Force Court? Then Scott will get a new CA's action, followed by a new automatic appeal to the Air Force Court, a new right to petition CAAF (a petition that CAAF will grant under its standing policy of granting returning cases) and even the right to seek Supreme Court review. His case could easily remain on appeal for an additional two years. And throughout those two years, the military will remain responsible for Scott's health care. If Scott has dependents, the military will remain responsible for their health care as well. The Air Force will also incur the administrative costs of continually reissuing Scott and any dependents their military i.d. cards. While he is on appellate leave, he can use his Montgomery GI Bill benefits. The list goes on.

Compare these costs of not serving the addendum SJAR on Scott's defense counsel with the cost of doing so. Was that a good trade?


Anonymous said...

Yes, but I am sure the SJA's last OPR reflected his negligent failure to serve the addendum, or he was at least counseled by his boss. Not.

Anonymous said...

Exactly. And the incompetent SJA's are already on the road to promotion before their ill-advised handiwork makes it to CAAF. Appellate court need to name names. Let's out the poor performers before they become JAG.

Anonymous said...
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Mike "No Man" Navarre said...

The answer to CAAFlog's question is so easy I learned it in Psych 101 my freshman year at Lehigh Univ. Whose time is wasted in this equation? The institution's time not the individual's time. Who is writing and serving the SJAR, the individual SJA not the institution. SJAs don't serve the addendum to avoid the work of having to review and comment on an addendum 1106 letter from counsel. They also don't serve the addendum to keep the case moving once they have finished their part on the process, or finished at least in their own view. Institutions can only act through individuals and individuals don;t see the larger consequences of their actions. Max Weber called it overspecialization.

Dwight Sullivan said...

Thanks, No Man. But I would have thought the answer was provided by second year law school. That's when I learned in professional responsibility class that the lawyer has an ethical duty of diligence and loyalty to the client. And as Rule 1.13 of the various services' Rules of Professional Conduct provide, the Service is an SJA's client. Did the SJA in Scott diliegently protect the Department of the Air Force's interests? To me, it appears not. In my experience, military lawyers are generally uncommonly diligent and loyal to their clients. Shouldn't those concerns be sufficient for the SJA to take on the negligible additional hassle of serving the addendum SJAR on the DC -- even with the risk that this might necessitate commenting on an additional allegation of legal error?

John O'Connor said...

This is one of three or four hot button issues with me (and probably the only one that is in agreement with a majority of the commentators on this blog). One problem with the military justice system is, as No Man notes, nobody (well, virtually nobody) at the trial level pays any heed whatsoever to the consequences of their actions on appeal. This happens, at least in part, because the compartmentalization of the military justice system means that problems on appeal are somebody else's problem, and they pop up so far down the line that the trial level players have changed billets and receive no fall-out from the problems they have caused.

Consequently, you have: (1) trial counsel being overly aggressive with evidence, trying to get in evidence that they don't need to convict but which creates an appellate time-bomb for the case; (2) defense counsel who don't preserve issues on appeal and/or get pressured into withdrawing motions and objections when it is clear that the military judge is going to rule against them; and (3) SJAs who screw up the SJAR and draft CA actions that my six-year-old could top.

The only actors in the military justice system who, in my view, consistently have an eye on the appellate process is a core of military judges who try to protect the record at all costs by shutting down an overzealous trial counsel once they have enough to convict and, during guilty plea cases, state on the record that they did not consider iffy evidence or argument made by the trial counsel. There was one MJ, may he rest in peace, where, in a contested case, I would always put my most questionable evidence in first because once he concluded that I was going to get a conviction he would sustain every defense objection even if the evidence was pretty clearly admissible.

Anonymous said...

Concur, generally. But I don't think the problem with not serving the addendum is one of a lack of diligence. After all, the SJA went through all the effort of preparing a substantive response in the first place, even to the point of procuring "new matter" necessitating service. All the SJA really has to do in response to the defense submissions is to fairly characterize them and note,"I disagree."

I suspect the real problem is the SJA's abandonment of an impartial role and assumption of a role more akin to a trial counsel attempting to defend the sentence adjudged. Isn't that more likely to motivate an SJA to go through all the effort of an addendum and then to sneak it in to the CA before DC gets a chance to rebut it?

As to the lack of appreciation by all counsel at the trial level for the appellate impact of their actions, I wholly agree. The problem could easily be fixed by giving them all appellate experience. Not by moving them to DC, but by establishing remote appellate units (like the USN/USMC reserve units) which would review and brief cases. If there's any concern about conflicts (and to broaden their exposure to the way other counsel and judges try courts-martial), just make sure the office that's handling the appeal wasnt't the office that handled the trial. I think it would be a great way to handle the resource problems in the appellate divisions, reduce post-trial delay, and give counsel an exposure to appellate practice that, hopefully, would inform their trial practice.


John O'Connor said...


I generally agree but have one quibble. Would an SJA really need to "sneak" SJAR addenda to the CA in order to torpedo a DC submission? The SJA is on the CA's staff and the typical commander likely give a high degree of credence to the SJA's assessment of the record. It seems to me that an SJA taking on a prosecutorial role acts contrary to the interests of that role by sneaking in new matter, and probably better serves a prosecutorial role by signaling disagreement and sending in a CA action that rejects the DC's requests. To me, if the SJA is motivated by a prosecutorial bent, he disserves the institution by not making sure the CA's action is unassailable on appeal.

Anonymous said...

Mr. O'Connor:

I agree completely with your view of what a true prosecutor would do, but many of those purporting to represent the government's interest in the military justice system are mere "trial counsel". It's as much a fault of the system itself, but I don't think some of them even have the training or experience to even begin to assess where the government's true interests might lie in these matters. At least having a flesh-and-blood client on the defense side gives counsel some bearings, although many of them are no better equipped than trial counsel to get the job done.


Anonymous said...

I think that any explanation for not serving addendum SJARs based on ill will or lack of professional diligence by the individual SJA is just a bridge too far. Most SJAs take their post trial duties seriously, but consider them more as pro forma tasks to move paper from one side to the other than as the legal under pinning for a process that will last for 2 to 4 more years.

It may not even be conscious. Rather the institutional bias takes over and the paper gets cranked out in routine fashion. On a big staff they might have 10 or more SJARs a month. Imagine being the action officer for those and trying to devote enough thought to consider where the case will be in 4 years-you don't know where you will be in 2 years, 4 years is unknowable.

NOTE: I am sure there are SJAs that prove this rule by being the exception, and I probably have met at least one. But I think they are the exception.

Anonymous said...


But how could a "pro forma" performance of an SJA's review be anything but "ill will or [a] lack of professional diligence" in light of the historically critical role that the SJAR has played, and is purported still to play, within the military justice system?

At a minimum, doesn't a "pro forma" observance of one's duties as an SJA reflect a failure to appreciate the import of those duties?