2021 (October Term)
United States v. Givens, 82 M.J. 211 (a person who has been ordered or coerced into preferring charges becomes an accuser within the meaning of Article 1(9), UCMJ, and an accuser is disqualified from acting as a convening authority in that case).
2008 (September Term)United
States v. Ashby, 68 M.J. 108 (under Article
1(9), UCMJ, an accuser is an
individual: (1) who signs and swears to charges; (2) who directs that
charges
nominally be signed and sworn to by another [type two accuser]; or (3)
who has
an interest other than an official interest in the prosecution of the
accused
[type three accuser]; an accuser may not convene a general or special
court-martial, nor may he refer charges to a court-martial; convening
authorities are not disqualified from referring charges by prior
participation
in the same case except when they have acted as accuser).
(the test for determining
whether a convening
authority is an accuser is whether he was so closely connected to the
offense
that a reasonable person would conclude that he had a personal interest
in the
matter; personal interests relate to matters affecting the convening
authority’s ego, family, and personal property, and a convening
authority’s
dramatic expression of anger towards an accused might also disqualify
the
commander if it demonstrates personal animosity; a personal interest
has been
found to exist where, for example, the convening authority is the
victim in the
case, where the accused attempted to blackmail the convening authority,
and
where the accused had potentially inappropriate personal contacts with
the
convening authority’s fiancée).
(a commander who convened a
command
investigation board [CIB] to investigate an aircraft mishap involving
appellant
and who forwarded the CIB’s report to the servicing legal office for
consideration of appropriate charges was not a type two, nominal
accuser
disqualified from serving as the convening authority, where the
commander’s
action was consistent with the performance of his duties, and the
charges
ultimately preferred against appellant were not investigated by the
CIB, were
not encompassed in the commander’s forwarding endorsement to the CIB,
and were
independently preferred).
(a commander’s involvement in
a preliminary
investigation of an aircraft mishap involving appellant did not make
him a type
three, de facto accuser disqualified from serving as the convening
authority,
where the commander’s interest in the investigation appeared to have
been wholly
official [interest in an incident and the investigation thereof is not
personal
- it is in fact the responsibility of a commander], and where the
frequency of
his contact with the command investigation board [CIB] or the number of
times
that he reviewed the draft CIB report did not reflect a personal rather
than a
professional interest).
United
States v. Schweitzer, 68 M.J. 133 (as long as the
individual who
convenes the court-martial is one of the persons described by statute
as having
such authority, the disqualification of the convening authority under
Articles
22(b) or 23(b), UCMJ, for being an accuser under Article 1(9), UCMJ,
does not
deprive the court-martial of jurisdiction).
(appellant’s unconditional
guilty
pleas to conduct unbecoming an officer waived his objection on appeal
that the
officer acting as the convening authority in his case was also an
accuser;
because the officer was authorized under Article 22(a), UCMJ, to
convene
appellant’s court-martial, any error was nonjurisdictional, and at
trial,
appellant explicitly acknowledged understanding that his guilty pleas
waived on
appeal the objection to the convening authority being an accuser).
United
States v. Taylor, 60 MJ 190 (where an article written
by the
trial counsel in the base newspaper expressed a negative view of the
accused and
his rehabilitative potential, the convening authority was not
disqualified from
participating in the accused’s post-trial review because the record
established
that the article could not be imputed to him; although the defense
counsel
argued that because the convening authority was the first person listed
in the
newspaper’s masthead, he must have known of and approved of the article
before
it was published, the convening authority swore in an uncontradicted
affidavit
that before the defense counsel’s submission, he was unaware of the
article’s
existence and played no role its preparation or publication).
2003
United
States v. Gudmundson, 57 MJ 493 (a convening
authority's
testimony at trial is not per se disqualifying, but it may result in
disqualification if it indicates that the convening authority has a
personal
connection with the case).
(if a convening authority's testimony at trial is of an official or
disinterested
nature only, the convening authority is not disqualified).
United
States v. Davis, 58 MJ 100 (as a matter of right,
each
accused is entitled to an individualized, legally appropriate, and
careful
review of his sentence by the convening authority; this right is
violated where
a convening authority cannot or will not approach post-trial
responsibility
with the requisite impartiality; under such circumstances, a convening
authority must be disqualified from taking action on a record of
court-martial).
(this Court's decisions disqualifying convening authorities from
taking
post-trial action have fallen into two categories; in the first
category, a
convening authority will be disqualified if he or she is an accuser,
has a
personal interest in the outcome of the case, or has a personal bias
toward the
accused; in the second category, convening authorities will be
disqualified if
they display an inelastic attitude toward the performance of their
post-trial
responsibility).
(it is not disqualifying for a convening authority to express
disdain for
illegal drugs and their adverse effect upon good order and discipline
in the
command; a commanding officer or convening authority fulfilling his or
her
responsibility to maintain good order and discipline in a military
organization
need not appear indifferent to crime; adopting a strong anti-crime
position,
manifesting an awareness of criminal issues within a command, and
taking active
steps to deter crime are consonant with the oath to support the
Constitution;
they do not per se disqualify a convening authority).
(where the convening authority made direct reference to his
post-trial role,
asserting that those convicted of using drugs should not come crying to
him
about their situations or their families’, those words reflected an
inflexible
attitude toward the proper fulfillment of post-trial responsibilities
in cases
involving convictions for wrongful use of controlled substances; the
words
lacked balance and transcended a legitimate command concern for crime
or
unlawful drugs).
(regardless of the nature of the offense, a convicted servicemember
is
entitled to individualized consideration of his case post-trial; that
individualized
consideration must be by a neutral convening authority capable of
fulfilling
his or her statutory responsibilities; statements reflecting an
unwillingness
to consider each case fully and individually create a perception that a
convicted servicemember will be denied the material right to
individualized
post-trial consideration and action; where a convening authority
reveals that
the door to a full and fair post-trial review process is closed, this
Court has
held that the convening authority must be disqualified).
(when the convening authority remarked that that those convicted of
using
drugs should not come crying to him about their situations or their
families’,
he erected a barrier to clemency appeals by convicted drug users who
wished to
have their situation or families’ considered, and he revealed his
attitude
toward the clemency process under such circumstances; his words
reflected that
the barrier and attitude related directly to his post-trial role as a
convening
authority; the words unmistakably reflected an inelastic attitude and
predisposition to approve certain adjudged sentences; this attitude is
the
antithesis of the neutrality required of a commander’s prerogative that
is
taken in the interests of justice, discipline, mission requirements,
clemency,
or other appropriate reasons).
2001
United States v. Dinges, 55 MJ 308 (an individual is disqualified from acting as a convening authority who, by reason of having preferred the charge or undertaken personally to pursue it, might be biased against the accused, if indeed he had not already prejudged his case).
(an accuser is one who initiates a charge out of a hostile animus toward the accused or a personal interest adverse to the accused; for example, personal interests exist where the convening authority is the individual victim of the accused’s offense, where the accused attempts to blackmail the convening authority, or where the accused has potentially inappropriate contacts with the convening authority’s family).
(a convening authority is not disqualified because of misguided prosecutorial zeal or where the convening authority issues an order that the accused violates).
(convening authority was not disqualified in a case involving the accused’s misconduct within the Boy Scouts where: (1) there was no animus toward the accused; (2) the convening authority’s position within the Boy Scouts was honorary and nominal; (3) the initiation of charges was what any commander would do; (4) the convening authority had no further communications with the Boy Scouts about the matter after the initial report; (5) the convening authority was not the victim; and (6) the convening authority was not being blackmailed).
2000
United
States v. Tittel,
53 MJ 313 (although an officer with a personal interest in
the
disposition of an offense becomes an accuser and is disqualified from
convening
the court-martial, evidence of record did not show that officer who
gave order
which the accused disobeyed was personally involved to the extent that
he
became an accuser).
1999
United
States v. Voorhees, 50 MJ 494 (a convening authority is
an
“accuser” when the convening authority is so closely connected to the
offense
that a reasonable person would conclude that the convening authority
had a
personal interest in the matter - that it would affect the convening
authority’s ego, family, or personal property, or that it demonstrates
personal
animosity beyond misguided zeal).
(record lacked evidence of personal interest or bias on the part of
the
convening authority where, although all the circumstances were known to
appellant and his counsel and although the military judge focused
attention on
the potential issue, appellant passed up the opportunity to litigate
whether convening
authority’s demeanor, his tone, or the context of his statements to the
effect
that he would “burn” appellant made him an accuser).