MILITARY JUSTICE PERSONNEL: Convening Authority: Disqualification


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).   


2004

 

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).


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