IN THE CASE OF
UNITED STATES, Appellee
v.
Gary W. TAYLOR, Airman First Class (E-3)
No. 03-0692
Crim. App. No. 34852
Argued
Decided
GIERKE, J., delivered the opinion of the Court, in which
EFFRON and
ERDMANN, JJ., joined. CRAWFORD, C.J.,
and BAKER, J., filed separate dissenting opinions.
Counsel
For Appellant: Major
For Appellee: Lieutenant Colonel Robert V. Combs (argued); Colonel LeEllen Coacher (on brief); Major Shannon J. Kennedy.
Military Judge: G. E. Pavlick
This
opinion is subject to editorial correction before final publication.
Judge GIERKE delivered the opinion of the Court.
This case concerns whether the staff judge advocate and convening authority were disqualified from participating in the post-trial review due to an article that the base newspaper published about Appellant’s court-martial. During Appellant’s sentencing hearing, the military judge suppressed adverse personnel records due to careless mistakes in their preparation. The trial counsel wrote an article for the base newspaper warning commands of the consequence of shoddy personnel records. The article suggested a negative view of Appellant and his rehabilitative potential. The staff judge advocate noted that the article’s views could be imputed to him and failed to disassociate himself from the article, but nevertheless declined to disqualify himself from Appellant’s post-trial review. That erroneous decision requires a new recommendation prepared by a staff judge advocate who is, and appears to be, neutral.
BACKGROUND
Appellant was tried by a general court-martial consisting of officer and enlisted members. He entered mixed pleas. He pleaded guilty to, and was found guilty of, violating a general regulation by viewing sexually explicit material on a government computer and two specifications of willful dereliction of his duties as a hospital respiratory technician in violation of Article 92 of the Uniform Code of Military Justice (UCMJ).1 On the contested charge, the members found him not guilty of two specifications of drug distribution in violation of Article 112a of the UCMJ.2 The members sentenced him to a bad-conduct discharge and reduction to the lowest enlisted grade, which the convening authority approved as adjudged. The Air Force Court of Criminal Appeals affirmed the findings and sentence in an unpublished opinion.3
FACTS
Appellant
was tried on
Eight days after
Appellant’s court-martial
adjourned, the trial counsel from the case —
Captain Melissa Burke — published an article in
the Nellis Air Force Base’s
newspaper, the Bullseye. The
article identified its author by name, indicated that she was assigned
to the
“Legal Office,” and provided a telephone number at the Military Justice
Division for readers with questions.
Captain Burke’s article began by warning that “[e]rrors in the administration of letters of counseling, letters of admonishment, and letters of reprimand may have devastating effects in [sic] the proper administration of justice in a court-martial proceeding.” Without ever naming Appellant, the article continued, “In a recent court-martial the panel was not given a complete picture of the member’s military service record including numerous adverse actions spanning a period of two years.” It explained that at a court-martial held in early September, the military judge excluded several adverse personnel records. After detailing the proper procedures for preparing such documents, the article described the excluded documents’ deficiencies. The trial counsel’s article then opined, “The interests of justice were clearly not met in the case referenced above.” The article elaborated, “The members were not informed of the full measure of [the accused’s] previous Uniform Code of Military Justice involvement. Further, they were not informed that he was not a good candidate for rehabilitation as evidenced by his failure to properly respond to lesser forms of corrective measures.” The article then reiterated, “Justice was not served.”
In
a memorandum dated
The defense counsel prepared another memorandum, dated the following day, seeking the staff judge advocate’s and convening authority’s disqualification. In this memorandum, the defense counsel argued that “[b]ecause of this article, the SJA” and his staff “are disqualified from advising the convening authority, including writing the SJA recommendation.” She also wrote that the convening authority “may be disqualified from acting on clemency.” The defense counsel reasoned that “[a]nnouncing that ‘justice was not served’ is prejudgment on whether to grant clemency, and no personnel from the [staff judge advocate’s] office may make a recommendation to [the convening authority] on clemency for A1C Taylor.”
The defense counsel also noted that the convening authority “is the first person named as part of the Bullseye Editorial Staff.” She argued, “If this article can in any way be imputed to him, he is disqualified from acting as the general court-martial convening authority in this case.”
In
response, an addendum recommendation advised the convening authority
that
“[t]he article can be imputed to your Staff Judge Advocate.” The addendum recommendation also stated that
“[t]he article does not exhibit a partial or biased opinion on the part
of your
Staff Judge Advocate towards clemency or post-trial submissions on
behalf of
Airman Taylor.” It added, “Further,
there is absolutely no evidentiary or legal basis for you to disqualify
yourself as the Convening Authority in this case.”
The addendum recommendation was signed by the chief of military justice and also included the staff judge advocate’s signature under a block reading, “I concur. I recommend you approve the sentence and with the exception of the bad conduct discharge, order it executed.”
The
convening authority signed an undated indorsement to the addendum
recommendation stating that “I was neither involved in the writing of,
nor has
my action been influenced in any way by the newspaper article authored
by Capt
Melissa Burke, imputed to my Staff Judge Advocate, and published by the
Bullseye on 14 Sep 01, entitled ‘Documentation of disciplinary action
can
affect court-martial.’” On
The
record of trial also includes an affidavit that the convening authority
executed three days after acting on the case.
The affidavit states that before the defense counsel called the
convening authority’s attention to Captain Burke’s article, he “was
unaware of
the article’s existence.” He also
stated, “I played no role in the preparation or publication of the
article.”
In his affidavit, the convening authority also explained, “I reviewed the record of trial, all defense submissions, and staff judge advocate recommendations prior to approving the sentence. I specifically did not allow any information in the article brought to my attention by the defense to influence my decision.” The convening authority also stated, “I am confident that I would have approved the sentence without reference to the staff judge advocate recommendations based on my independent review of the evidence and defense submissions.” The record contains no similar affidavit from the staff judge advocate.
DISCUSSION
A.
The Neutrality Requirement
Post-trial review is
an important stage in the court-martial process. This
stage culminates in the convening
authority’s highly discretionary decision to approve, reduce, or set
aside the
court-martial’s findings and sentence.4
When making that decision, the convening authority will consider
not
only any submissions by the defense,5 but also a recommendation prepared
by a staff judge advocate or legal officer.6
We have
emphasized the importance of ensuring that the convening authorities
and legal
advisors who carry out “those important statutory responsibilities be,
and
appear to be, objective.”7 Maintaining these
individuals’ neutrality protects two important interests:
(1) the accused’s right to a fair post-trial
review; and (2) the system’s integrity.
We recognized the first interest when we noted that a
recommendation
prepared by “a biased legal officer [or staff judge advocate] could
unfairly prejudice
the convening authority’s decision.”8 The
Concern for both fairness and integrity suggests that these neutral roles cannot be filled by someone who has publicly expressed a view prejudging the post-trial review process’s outcome. So, for example, we have held that a convening authority was disqualified from taking post-trial action in a cocaine and marijuana use case because of briefings during which he reportedly commented that people convicted of using drugs “should not come crying to him about their situations or their families[’].”10 These remarks required the convening authority’s disqualification because they “reflect an inflexible attitude toward the proper fulfillment of post-trial responsibilities in cases involving convictions for wrongful use of controlled substances.”11
Whether a staff judge advocate or convening authority is disqualified from participating in the post-trial review is a question of law that we review de novo. As we conduct our analysis, the defense “has the initial burden of making a prima facie case” for disqualification.12
B. The Convening Authority
The convening authority was not disqualified. When the defense counsel challenged the convening authority’s involvement in the post-trial process, she wrote, “If this article can in any way be imputed to him, he is disqualified from acting as the general court-martial convening authority in this case.” But the record establishes that the article cannot be imputed to the convening authority.
The defense counsel argued that because the convening authority was the first person listed in the Bullseye’s masthead, he must have known of and approved Captain Burke’s article before it was published. Not so. In an uncontradicted affidavit, the convening authority has sworn that before the defense counsel’s submission, “I was unaware of the article’s existence. I played no role in the preparation or publication of the article.” This disproves the very premise on which the defense’s challenge to the convening authority was based. Accordingly, the defense has not carried its burden of establishing a prima facie case that the convening authority was disqualified from executing his post-trial duties.
C. The Staff Judge Advocate
In stark contrast to the convening authority’s disavowal of any previous knowledge of Captain Burke’s article, the staff judge advocate acknowledged that the article may be imputed to him. The addendum staff judge advocate’s recommendation — a document bearing the staff judge advocate’s signature and express concurrence — states, “The article can be imputed to your Staff Judge Advocate.” The convening authority’s indorsement to this addendum recommendation similarly refers to “the newspaper article authored by Capt Melissa Burke, imputed to my Staff Judge Advocate, and published by the Bullseye on 14 Sep 01.”
The staff judge advocate could have disclaimed the article and participated in the post-trial review.13 He did not. Rather, in what might have been a laudable exercise in candor, he wrote that the article could be imputed to him. But the consequence of that concession is that he could not perform the duties entrusted to a neutral staff judge advocate.
The article expressly stated that the unnamed accused “was not a good candidate for rehabilitation.” Any reasonable observer who was familiar with the facts would understand that the unnamed accused was, in fact, Appellant. By agreeing that the article including this characterization 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. Accordingly, the staff judge advocate’s failure to disqualify himself was error.
D. Remedy
A
disqualified staff judge advocate’s participation in the post-trial
review
process is a serious deficiency. As we
have frequently observed, “a
military accused’s ‘best hope for sentence relief from a court-martial
judgment
comes in the convening authority’s action.’”14 The staff judge
advocate’s recommendation “plays a pivotal role in an accused’s chances
for
relief. Thus, [the staff judge
advocate’s] disqualification in preparing this recommendation cannot be
said to
be a technical matter without impact on the outcome of these
proceedings.”15
Granting relief in
this case is particularly appropriate because the trial defense counsel
identified the problem and urged disqualification as a remedy. The staff judge advocate had an opportunity
to avoid the issue, but chose not to.
As we have observed,
“By definition, assessments of prejudice during the clemency process
are
inherently speculative. Prejudice, in a
case involving clemency, can only address possibilities in the context
of an
inherently discretionary act.”16
Accordingly, where
post-trial errors occur, we will order a new review if the defense
makes “some
colorable showing of possible prejudice.”17 Appellant has satisfied
this low standard for obtaining a new post-trial review.
The defense counsel
submitted a combined response to the staff judge advocate’s
recommendation and
clemency request that went well beyond a plea for a reduced sentence. The defense submission asked the convening
authority to set aside the findings and sentence on the grounds that
Appellant
had been treated unfairly in the court-martial process.
The defense submission
contended that the case should never have been referred to a general
court-martial. According to the defense
counsel, specific items portrayed as facts in the staff judge
advocate’s
Article 3418 pretrial advice letter allegedly
contained false or exaggerated information on matters that were neither
minor
nor inconsequential. Based on this
analysis, the defense claimed that the staff judge advocate’s Article
34 advice
overstated the seriousness of Appellant’s offenses.
The defense counsel also stated that she had
not been provided with a copy of the Article 34 advice letter, in
violation of
R.C.M. 406(c), so she had been unable to make a timely comment to
challenge the
letter’s accuracy.
The defense submission
also observed that Appellant was found not guilty of the two ecstasy
distribution charges he faced at the general court-martial. The defense argued that Appellant’s actual
misconduct,
setting aside the unsubstantiated distribution charges, warranted
nonjudicial
punishment rather than a general court-martial.
The defense’s
post-trial submission also argued that two errors occurred at trial. The first involved a defense objection to the
introduction of the pictures that Appellant had viewed.
The defense objected under Military Rule of
Evidence 403 that the evidence was more prejudicial than probative, and
the
military judge overruled the objection without articulating an analysis
under
the required balancing test. The defense
submission also contended that a portion of the trial counsel’s
sentencing
argument stating that Appellant “should not be allowed to remain in the
Air
Force” was impermissible under United States v. Motsinger.19 The defense counsel
acknowledged that she had not objected to the argument, which raised
the
possibility of waiver. But she noted
that the convening authority retained “the power to cure” the alleged
error.
The defense counsel’s
post-trial submission included challenges to the fairness of the
pretrial
processing of Appellant’s case, as well as of the sentencing hearing. These challenges required a fair and
objective analysis by the staff judge advocate before the convening
authority
acted. Because the defense submission
included allegations of legal error, the staff judge advocate’s advice
to the
convening authority was particularly important.
Appellant was entitled
to a post-trial action by a convening authority who
had been advised by a properly-qualified staff judge advocate. In this case, that advice was instead given
by a staff judge advocate who should have been disqualified from acting. In light of the issues included in the
defense’s post-trial submission, the lack of advice from a
properly-qualified
staff judge advocate constitutes a “colorable showing of prejudice,”
warranting
a new post-trial review and action.
In opposing remand for
a new post-trial review, the Government points to the convening
authority’s
affidavit in which he stated, “I am confident that I would have
approved the
sentence without reference to the staff judge advocate recommendations
based on
my independent review of the evidence and defense submissions.” But at oral argument, the Government conceded
that we cannot “postulate what [the convening authority] might have
done” if
the staff judge advocate had recommended clemency.
It would be particularly difficult to predict
what the convening authority would have done had the staff judge
advocate
advised him that one of the defense’s allegations of legal error was
meritorious. So the convening
authority’s affidavit does not erase the defense’s colorable showing of
prejudice.
We do not mean to
imply any view about what a neutral staff judge advocate should have
recommended
or how the convening authority should have acted. It
is the convening authority’s “statutory
duty, not ours, to consider what action is appropriate in the
circumstances.”20 Our statutory duty is to
determine whether “the law is adhered to, established procedures are
followed,
and staff judge advocates do their jobs.”21 In this case, the staff
judge advocate did not do his job correctly when he declined to
disqualify
himself. Remanding the case for a new
convening authority’s action will ensure that Appellant is not
prejudiced by
that failure. It will also ensure that,
regardless of the new action’s outcome, the military justice system’s
integrity
will be protected from a disqualified individual influencing the
outcome of
Appellant’s post-trial review.
DECISION
We reverse the
decision of the United States Air Force Court of Criminal Appeals and
set aside
the convening authority’s action. We
return the record to the Judge Advocate General of the Air Force for a
new
post-trial review, including a recommendation by a staff judge advocate
who is
not disqualified.
1 10 U.S.C. § 892 (2000).
3 United
States v.
4 See Art. 60,
UCMJ, 10 U.S.C. § 860
(2000); Rule for Courts-Martial 1107 [hereinafter R.C.M.].
5 See Art. 60(b),
UCMJ; R.C.M. 1105.
6 See Art.
60(d), UCMJ; R.C.M. 1106
(requiring staff judge advocate’s or legal officer’s recommendations in
all
general court-martial cases and special court-martial cases resulting
in a
bad-conduct discharge or confinement for one year).
7
8
9 United
States v. McCormick, 34 M.J. 752, 755 (N-M.C.M.R. 1992) (citing United
States v. Jolliff, 22 C.M.A. 95, 46 C.M.R. 95 (1973)).
10
12
13 See id.
at 337 (holding that trial counsel’s statements in a post-trial article
would
not be imputed to the staff judge advocate, who expressly stated that
the
remarks were not made on his or the convening authority’s behalf).
14 United States
v. Edwards, 45 M.J. 114,
116 (C.A.A.F. 1996) (quoting United States v. Bono, 26 M.J.
240, 243 n.3
(C.M.A. 1988)).
16
17
20
21
CRAWFORD, Chief Judge (dissenting):
Even assuming Captain
Burke’s newspaper article should have disqualified the staff judge
advocate and
convening authority, I would conclude that any error in this case was
harmless.
Pursuant to his pleas, Appellant was convicted of
wrongfully using a
government computer to access the Internet and display pornography and
sexually
explicit material. Appellant also
pleaded guilty to dereliction of his duties as a hospital respiratory
technician on two occasions. On the
first occasion,
Based on the
information contained in the record, including the serious offenses
described
above, it is extremely unlikely that a new staff judge advocate or
convening
authority would have granted Appellant any relief.
For these reasons, I conclude that any error
in failing to disqualify the staff judge advocate and convening
authority was
harmless.
BAKER,
Judge (dissenting):
I
agree with the majority's conclusion that the staff judge advocate's
failure to
disqualify himself was error.
"A disqualified staff judge advocate's
participation in the post-trial review process is a serious
deficiency." ___ M.J.
(13). I also agree with the
framework used by the majority to assess prejudice.
"By definition, assessments of prejudice
during the clemency process are inherently speculative.
Prejudice, in a case involving clemency, can
only address possibilities in the context of an inherently
discretionary
act." ____ M.J.
(13). Additionally, I agree with
the majority's consideration of legal policy.
"Granting relief in this case is particularly appropriate
because
the trial defense counsel identified the problem and urged
disqualification as
a remedy. The staff judge advocate had
an opportunity to avoid the issue, but chose not to."
____ M.J. (13).
However,
I respectfully dissent from the result reached by the majority. I do not believe there is any possibility,
other
than that found in the logic that we cannot ultimately know how someone
might
have acted had events been different, that Appellant would have
received
clemency from the convening authority on his sentence in light of the
offenses
Appellant stipulated that he committed. Appellant
pleaded and was found guilty of violating a general regulation by
viewing
pornography on a government computer while on duty.
He also pleaded guilty to, and was convicted
of, willful dereliction of his duties as a hospital respiratory
technician for
neglecting patients while he viewed pornography, and for falsely
annotating the
medical charts of respiratory care patients.
According
to the stipulation of fact, Appellant was responsible for giving
nebulizer
treatments to patients and annotating the treatments on their charts to
include
"time, breath sounds, pulse rate, duration and tolerance of the
treatment,
peak flow, oxygen saturation and cough."
"During these treatments, the patients inhale medication which
makes it easier for them to breathe."
On February 19, Appellant gave nebulizer treatments to three
patients at
approximately 1200. At this same time,
Appellant falsely annotated the patient's charts to show that he had
given
nebulizer treatments to the three patients at 1600 as well. The stipulation of fact indicates that
Appellant's actions were discovered by a nurse at 1500.
For these actions, Appellant received a bad
conduct discharge, reduction to E-1, and no confinement.
Of
course, we cannot ultimately know if a another staff judge advocate’s
recommendation would have led to a different clemency result, but we do
know
the stipulated facts and circumstances of Appellant's offenses,
including
Appellant's neglect of his patients and his viewing of pornography on
duty, at
work. The convening authority swore in
an affidavit, "I am confident that I would have approved the sentence
without reference to the staff judge advocate recommendations based on
my
independent review of the evidence and defense submissions." Thus, this is not a case where Appellant did
not have an opportunity to make his case or where the convening
authority was
acting alone pursuant to contested facts or an erroneous statement of
the
offenses. Finally, with the exception of
Appellant's assertion of certain legal errors identified to the
convening
authority, Appellant did not present as part of his clemency package
factors
typically suggestive of possible clemency such as a stellar record,
honorable
combat service, remorse, or dependent obligations and needs.
As a
result, although the staff judge advocate’s error in this case was
evident,
based on this record I do not believe there was any actual possibility
of a
different outcome during the convening authority’s review.
Therefore, the error in question was
harmless. For this reason, I respectfully
dissent from the result reached by the majority.