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?