2010 (September Term)
United States v. Stefan, 69 M.J. 256 (Article 6(c), UCMJ, provides that no person who has acted as member, military judge, trial counsel, assistant trial counsel, defense counsel, assistant defense counsel, or investigating officer in any case may later act as a staff judge advocate or legal officer to any reviewing authority upon the same case; RCM 1106(b) echoes this sentiment in similar language).
(the plain text of Article 6(c), UCMJ, states that an individual who acted as trial counsel is disqualified from acting as the SJA; the government’s argument that only those persons that were detailed as trial counsel in accordance with Article 27, UCMJ, are disqualified under Article 6(c), UCMJ, is rejected; the text does not support such a narrow reading of the statute, as disqualification does not require that a person be detailed as trial counsel, only that the person act as such).
(a person will be disqualified from acting as the SJA if that person performed the duties of a disqualifying position; as for when a person has performed the duties of a disqualifying position, some relevant considerations include the action taken, the position of the person that would normally take that action, and the capacity in which the action is claimed to have been taken).
(in this case, the chief of
performed some duties of, and thus acted as, trial counsel; she not
the charges to be served on appellant, a task traditionally reserved
detailed trial counsel, but she also acknowledged performing that act
counsel in block 15 of the two charge sheets; as such, she was
Article 6(c), UCMJ, and RCM 1106(b) from acting as the SJA and
SJAR’s addendum in appellant’s case).
(SJA recommendations prepared by a disqualified officer are not void; rather an appellate court tests for prejudice under Article 59(a), UCMJ, which requires material prejudice to the substantial rights of the accused; to find reversible error, an appellant must, inter alia, make some colorable showing of possible prejudice).
(although the SJAR addendum in this case was prepared by a disqualified officer, appellant was not prejudiced by the error, where appellant did not even raise this issue on appeal to the CCA and the involvement by the disqualified officer in appellant’s case was minimal; in this case, nothing indicates that the disqualified officer actively prosecuted the case or took a firm stance on sentencing, and the addendum to the SJAR merely echoed the succinct recommendation of no clemency in the SJAR itself without further elaboration of appellant’s case; considering the circumstances of this case, including the host of offenses committed by appellant and the seriousness of some of his crimes, there is nothing that would suggest that another SJA would have made a different recommendation on appellant’s clemency request).
United States v. Moorefield, 66 M.J. 170 (RCM 1106(b) and Article 6, UCMJ, bar a person from participating as the SJA in the same case that he served as a military judge).
(the fact that the SJA served as the military judge in an earlier, unrelated court-martial of appellant did not disqualify him from participating in a second court-martial of appellant under RCM 1106(b) and Article 6, UCMJ, which bar a person from participating as the SJA in the same case that he served as a military judge, where the courts-martial occurred several years apart and involved different victims and evidence, and thus the two trials were not the same case).
United States v. Taylor, 60 MJ 190 (where the staff judge advocate conceded that an article written by the trial counsel in the base newspaper expressing a negative view of the accused and his rehabilitative potential could be imputed to him, he could not perform the duties entrusted to a neutral staff judge advocate; by agreeing that such an article could be imputed to him, the staff judge advocate created the impression that he had prejudged the appropriateness of clemency in this case; a reasonable observer would no longer feel confident that the staff judge advocate remained neutral when he advised the convening authority concerning appellant’s clemency request).
United States v. Stirewalt, 60 MJ 297 (Article 6(c), UCMJ, states that no person who acts as an investigating officer may later act as a staff judge advocate or legal officer to any reviewing authority upon the same case; the plain language of the Article 6(c) states that it applies to a staff judge advocate acting for a reviewing authority; all of the instances where CAAF has found violations of Article 6(c) involve subsequent actions for a reviewing authority; on its face, Article 6(c) applies to a staff judge advocate acting for a reviewing authority, and its application does not extend to a staff judge advocate preparing a pretrial advice for a referring authority; where an investigating officer’s subsequent participation in a case does not involve a reviewing authority, Article 6(c) is not applicable).
United States v. Gutierrez, 57 MJ 148 (if an SJA testifies as a witness at a court-martial concerning a contested matter, he or she may be disqualified from thereafter serving as the SJA for the convening authority in that case).
(so long as it remains unresolved whether a guilty plea waives a speedy trial issue, testimony on a contested speedy trial issue involves testimony on an issue potentially subject to post-trial review, and SJA who testified on speedy trial issue placed herself in a position where she would be called upon as SJA to evaluate her own testimony regarding the contested speedy trial issue, thereby disqualifying her from serving as the reviewing SJA).
(having actively participated to orchestrate the timing of the Article 32 investigation to force the defense to assume responsibility for the delay in the preparation of the case against appellant, the SJA was not in a position objectively to evaluate the fruits of her efforts because she assumed a prosecutorial role in appellant’s case).