We recently had an extended conversation about serving the addendum SJAR on the defense. Due to Friday’s extensive development, that conversation has already dropped off of CAAFlog’s front page.
Most commentators thought that SJAs in the field simply don’t have the experience to make the correct cost-benefit analysis concerning service of the addendum SJAR. If that’s right — and it probably is — then shouldn’t the system make that choice for them? Shouldn’t the Joint Services Committee see the problem and recommend that R.C.M. 1106(f)((7) be amended to require service of the addendum SJAR on the defense regardless of whether it contains new matters? So that the defense can’t delay the CA’s action forever by continually responding the addendum SJARs, thus providing a new 10-day period, how about also expressly providing that the CA may act on the case after either: (1) 10 days have passed from service of the addendum SJAR; or (2) the defense has responded to the addendum SJAR. Under such a rule, the CA could act even if the defense introduced a new allegation of legal error to which the SJA had not responded.
Such a rule change would promote fairness, eliminate hundreds of hours of work at the appellate level each year and reduce the average time that servicemembers with court-martial convictions spend on appellate review. Is there a downside?