The appellant asserts that the attorney-client relationship with his detailed trial defense counsel was terminated without good cause, leaving the appellant legally and factually without post-trial representation. The basis for the appellant’s claim is that substitute counsel failed to establish an attorney-client relationship with the appellant prior to receipt of the staff judge advocate’s recommendation (SJAR).

The court makes clear in footnote 3, that:

This case does not present a situation similar to that addressed by this court in United States v. Hutchins, 68 M.J. 623 (N.M.Ct.Crim.App. 2010), rev. granted, __ M.J. __ (C.A.A.F. June 7, 2010), a trial-level severance issue analyzed under R.C.M. 505 and 506.

In his unrebutted affidavit, Capt F stated that he was detailed in anticipation of Capt M’s departure. Capt F stated that during this post-trial phase, he was in touch with Capt M, and that Capt M informed him that clemency matters had already been submitted. Capt M also informed Capt F that Capt F was needed to receive the SJAR, but that no further substantive action would be required. Capt F was under the impression that the previously submitted clemency request would be reviewed by the CA in due course. Capt F stated that he made no attempt to contact the appellant, believing that his duties were “administrative in nature.”

However, NMCCA did not agree with that view of the situation.

Capt F did have an affirmative obligation pursuant to both R.C.M. 1106(f)(2) and Miller to form an attorney-client relationship with the appellant. He was also obliged to take further action as required to protect the interests of the appellant. The obligation to form the relationship, review the SJAR and take such action as required was not one that prospectively could be limited by what Capt F describes as Capt M’s suggestion that no further action was required other than to receive the SJAR.

As best we can tell there was nothing meaningful that the substitute counsel could have done and he was there effectively for administrative purposes – on the facts of this case, because, “There is no colorable claim to prejudice in this case.”

On being detailed as substitute counsel post-trial the first step should be to make contact with the client. Only then can counsel be certain that . . . .

The military judge made a clemency recommendation.

The SJAR failed to note the clemency recommendation.

The TDC failed to comment on the SJAR failure.

Phew! And here’s why.

Before this court, Appellant has assigned as error that Appellant was prejudiced by the omission of mention of the military judge’s recommendation for clemency in the Staff Judge Advocate’s Recommendation (SJAR). After announcing the sentence, the military judge recommended on the record that the Convening Authority suspend the bad-conduct discharge for a period of thirty-six months[.]

Aha,

Part II of the pretrial agreement contained a suspension provision, requiring the Convening Authority to suspend a punitive discharge for six months, at which point, unless sooner vacated, it would be remitted.

So now post-trial

Post-trial, neither the SJAR nor the SJAR Addendum mentioned the military judge’s recommendation. Trial defense counsel did not comment on the thirty-six-month suspension recommendation in his Rule for Courts-Martial (R.C.M.) 1105, Manual for Courts-Martial, United States (2008 ed.) submission. R.C.M. 1106(f)(6) provides, ―Failure of counsel for the accused to comment on any matter in the recommendation or matters attached to the recommendation in a timely manner shall waive later claim of error with regard to such matter in the absence of plain error.‖ If defense counsel does not make a timely comment on an omission in the SJAR, the error is waived in the absence of plain error. United States v. Halsey, 62 M.J. 681, 683 (C.G.Ct.Crim.App. 2006); United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000).

There’s more to read, but in this case there was plain error because regardless of TDC opportunity to comment the SJA is required to comment on a sentencer clemency recommendation, and in this case the appellant did better than the MJ recommendation.

The better practice is still for the TDC to make the point. On appeal the appellate counsel made this argument.

Appellant argues that he was prejudiced because the military judge’s ―unusual recommendation‖ was a strong message that he saw redeeming qualities in Appellant. He also contends that if the Convening Authority knew the military judge’s recommendation, then the Convening Authority might have decided to retain rather than administratively discharge Appellant1 or grant some other relief.

That argument didn’t sway CGCCA. But, what if it had been made to the CA post-trial? If the TDC had taken the point and argued it might there have been a different result. Methinks unlikely, but it should have been worth the effort.

Vicki Behenna has 10 minutes to plead her son’s case. Where does she begin? In the last few months, she has developed hours of arguments about why U.S. Army 1st Lt. Michael Behenna was wrongly convicted of killing a suspected terrorist in Iraq in 2008, why his 20-year sentence for unpremeditated murder was too severe compared to other sentences for the same offense and why the military rules for detaining suspected terrorists make no sense in a combat zone. She will have to condense all that into a matter of minutes when she appears Thursday before the Army Clemency and Parole Board in Arlington, Va.

Reports NewsOK.

Having done hearings at the Army Clemency & Parole Board I am not sure that the Board will hold her exactly to the ten minutes. True, such presentations need to be clear, concise, and tailored. But in my experience the board members, including Mr. Vick from time to time will have pertinent questions. And there will be some leeway to make sure a point is made and understood.

Here is a link to Band of Mothers referenced in the piece. And here is the link to the Behenna website.