IN THE CASE OF
UNITED
STATES, Appellee
v.
Keith W.
STROTHER, Corporal
No.
03-0655
Crim. App.
No. 200000050
Argued
Decided
EFFRON,
J., delivered the opinion of the Court, in which GIERKE, C.J.,
CRAWFORD, BAKER,
and ERDMANN, JJ., joined.
Counsel
For Appellant:
Lieutenant
Brian L. Mizer, JAGC, USNR (argued); Vaughan E. Taylor (on
brief); Lieutenant Rebecca
S. Snyder, JAGC, USNR.
For Appellee: Lieutenant
Donald L. Palmer, JAGC, USNR (argued); Colonel William K. Lietzau,
USMC (on brief); Colonel M.E. Finnie, USMC, and Lieutenant
Frank L.
Gatto, JAGC, USN.
Military Judge:
P. J.
Straub
This
opinion is subject to editorial correction
before final publication.
Judge
EFFRON delivered the opinion of the Court.
At
a general court-martial composed of a
military judge sitting alone, Appellant was convicted, contrary to his
pleas,
of an indecent act and endeavoring to impede an investigation, in
violation of
Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934
(2000). He was sentenced to a
bad-conduct discharge, confinement for 90 days, and reduction to E-1. The convening authority approved these
results, and the Court of Criminal Appeals affirmed in an unpublished
opinion.
On
Appellant’s petition, we granted review
of the following issue:
WHETHER
THE
For the reasons set
forth below, we conclude that the military judge properly rejected the
motion
to disqualify the trial counsel, and we affirm.
I.
BACKGROUND
A.
THE PRELIMINARY INQUIRY
Appellant,
a corporal, attended a farewell
party for a sergeant in the unit, which was hosted by the departing
member’s
roommate. Within weeks thereafter,
rumors circulated within the command about inappropriate sexual
activity at the
party. The unit’s command sergeant major
conducted an investigation and concluded that the evidence was
insufficient to
warrant further action. He briefed the
Deputy Commander, Chief of Staff, and Staff Judge Advocate, all of whom
agreed
with his assessment of the evidence.
Subsequently,
Major (Maj) Flexer was detailed to serve as staff judge advocate for
the
command. At some point, the convening authority and Maj Flexer
discussed
the incident that had been the subject of the prior
investigation. Maj
Flexer conducted a number of interviews.
He also inquired into the availability of Lieutenant
Colonel (LtCol) Harper, a
reserve
officer and an attorney in civilian life, to conduct an inquiry. LtCol Harper was ordered to conduct a
preliminary inquiry, and he discussed various aspects of the case with
Maj
Flexer, including procedural matters, substantive issues, and
investigative
options. As a result of information
obtained
during the preliminary inquiry, Appellant was confined, and Maj Flexer
represented the command during Appellant’s pretrial confinement
hearing.
During
the course of LtCol Harper’s
preliminary inquiry, a new Staff Judge Advocate, Colonel (Col) Nangle,
was
assigned to
the command, and Maj Flexer assumed other legal duties.
B. THE ARTICLE 32 PRETRIAL INVESTIGATION
After
receiving LtCol Harper’s report, the
convening authority ordered a formal pretrial investigation under
Article 32,
UCMJ, 10 U.S.C. § 832 (2000), and appointed Maj Chenail as the Article
32
Investigating Officer. The convening
authority also designated Maj Flexer as the Counsel for the Government. The Article 32 Investigating Officer
conducted a hearing, reviewed documentary evidence, and recommended
referral of
charges against Appellant to a general court-martial.
C.
TRIAL PROCEEDINGS
The
convening authority referred the
charges to a general court-martial. Maj
Flexer was detailed to serve as trial counsel.
The defense moved to disqualify Maj Flexer because of his
previous participation
in the investigatory stages, citing Rule for Courts-Martial (R.C.M.)
502(d)(4),
which states in pertinent part that:
No
person shall act as trial counsel . . .
in any case in which that person is or has been:
.
. .
(B)
An investigating officer; . . .
See also
Article 27(a)(2), UCMJ, 10 U.S.C. §
827(a)(2)(2000). The defense also cited
Appellant’s due process right to a fair trial.
See U.S. Const. amend. V.
During
argument on the motion, defense
counsel asserted that “the rules say that if a person has been an
investigator
in the same case, he cannot be trial counsel.”
According to defense counsel, Maj Flexer violated the rules by
taking
statements, speaking to witnesses, arranging for witness travel, and
participating in the determination to reopen the investigation. Defense counsel relied on the record of the
Article 32 proceeding and presented testimony from LtCol Harper, the
officer
who conducted the preliminary inquiry, concerning his interaction with
trial
counsel. The military judge denied the
motion, concluding that the trial counsel’s activity did not constitute
any
“overstepping” of the rules.
D.
APPELLATE CONSIDERATION
Appellant
contends in the present appeal
that the military judge erred in denying the motion to disqualify trial
counsel. According to Appellant, Maj
Flexer was disqualified as a matter of due process because his pretrial
activities made him an “interested party” who could not perform
prosecutorial
duties with the requisite degree of neutrality.
In the alternative, Appellant contends that Maj Flexer acted as
an
“investigating officer” as that term is used in Article 27, thereby
disqualifying him from serving as trial counsel. We
review the military judge’s ruling on a motion
to disqualify counsel under an abuse of discretion standard. See
II. DUE
PROCESS
Appellant
asserts Maj Flexer was an
“interested party” whose participation as a prosecutor violated
Appellant’s due
process rights under the Supreme Court’s decisions in Young v.
United States
ex rel. Vuitton et Fils S.A., 481 U.S. 787 (1987), and Marshall
v.
Jerrico, 446 U.S. 238 (1980). In
support of his contention, Appellant notes that Maj Flexer was
responsible for
reviving a dormant investigation; he provided legal advice to
commanders and
investigators during an earlier phase of the case; he assisted in
decisions
leading to grants of immunity; this was his “first big case for the
command”;
the pressure to secure a conviction “must have been great,”
particularly in
view of the grants of immunity to other persons whose culpability
arguably was
greater; and his “performance at trial likely would have been
documented on his
fitness evaluation reports.”
A.
DISQUALIFICATION OF A PROSECUTOR AS AN “INTERESTED PARTY”
A
prosecutor will be disqualified as an
“interested party” if the prosecutor has a financial or improper
personal stake
in the outcome of the proceeding. The
Supreme Court in Young addressed the propriety of appointing a
private
party’s lawyer as the prosecuting attorney in a related contempt
proceeding,
and held that “the beneficiary of a court order may not be appointed to
undertake contempt prosecutions for alleged violations of that order.” 481
The
Court emphasized that a prosecuting
attorney:
is
the representative not of an ordinary
party to a controversy, but of a sovereignty whose obligation to govern
impartially is as compelling as its obligation to govern at all; and
whose
interest, therefore, in a criminal prosecution is not that it shall win
a case,
but that justice shall be done. As such,
he is in a peculiar and very definite sense the servant of the law, the
twofold
aim of which is that guilt shall not escape nor innocence suffer.
The
Court discussed the conflict of
interest provisions applicable to Department of Justice attorneys,
including
the prohibition against simultaneously representing the Government and
a private
party having a financial interest that could be affected by a contempt
proceeding. Young,
481
In
Marshall v. Jerrico, the Supreme
Court discussed prosecutorial disqualification in both judicial and
administrative proceedings in the course of rejecting a due process
challenge
to an administrative procedure. 446
The
Court rejected the due process
argument.
Our
legal system has traditionally accorded
wide discretion to criminal prosecutors in the enforcement process . .
. .
Prosecutors need not be entirely neutral and detached[.] In an adversary system, they are necessarily
permitted to be zealous in their enforcement of the law.
The constitutional interests in accurate
finding of facts and application of law, and in preserving a fair and
open
process for decision, are not to the same degree implicated if it is
the
prosecutor, and not the judge, who is offered an incentive for securing
. . .
penalties.
We
do not suggest . . . that the Due Process Clause imposes no limits on
the
partisanship of . . . prosecutors.
Prosecutors are also public officials; they too must serve the
public
interest. In appropriate circumstances
the Court has made clear that traditions of prosecutorial discretion do
not
immunize from judicial scrutiny cases in which the enforcement
decisions of an
administrator were motivated by improper factors or were otherwise
contrary to
law.
A
scheme injecting a personal interest,
financial or otherwise, into the enforcement process may bring
irrelevant or
impermissible factors into the prosecutorial decision and in some
contexts
raise serious constitutional questions.
But the strict requirements of neutrality cannot be the same for
administrative prosecutors as for judges, whose duty it is to make the
final
decision and whose impartiality serves as the ultimate guarantee of a
fair and
meaningful proceeding in our constitutional regime.
The
Court reviewed the administrative
process at issue and concluded that “the influence alleged to impose
bias [was]
exceptionally remote.”
B.
DISCUSSION -- DUE PROCESS
The
factors cited by Appellant, summarized at the outset of Part II of this
opinion,
do not transform a prosecutor into an “interested party” who must be
disqualified as a matter of due process.
The Supreme Court, in Young and Jerrico,
recognized that
prosecutors are advisors and advocates for a party.
Young, 481
In
civilian society, prosecutors routinely
provide advice and recommendations on the conduct of investigations,
grants of
immunity, and charging decisions. The
fact that such decisions later may be challenged at trial or on appeal
does not
disqualify an attorney from serving as a prosecutor as a matter of due
process. Likewise, a civilian
prosecutor, whether elected or appointed, inevitably faces the pressure
of his
or her “first big case,” as well as the pressure generated when advice
provided
in a pretrial setting comes under challenge at trial.
Such pressures, which come with the territory
inhabited by prosecuting attorneys, do not transform a prosecutor into
an
interested party. Military prosecutors,
like their civilian counterparts, are obligated to deal with such
pressures in
the context of the prosecutor’s responsibility to ensure both that the
guilty not
escape and that the innocent not suffer.
See Young, 481
Appellant
also asserts that Maj Flexer had
a conflict of interest because he did not respond to defense discovery
requests
in a manner that was timely or complete.
The defense litigated the issue of discovery in connection with
a motion
to reopen the Article 32 investigation, which was denied by the
military
judge. The defense has not asserted on
appeal that the military judge committed prejudicial error with respect
to
discovery. While it is possible that
prosecutorial abuse of discovery in another case would be so
egregious as to demonstrate impermissible bias requiring
disqualification as a
matter of due process, see Jerrico, 446
III.
STATUTORY DISQUALIFICATION
Appellant
contends that even if Maj Flexer
was not disqualified as a matter of due process, he should have been
disqualified in the present case as an “investigating officer”
prohibited from
serving as a trial counsel under Article 27(a)(2). The statute provides in pertinent part that:
“[n]o person who has acted as investigating officer, military judge, or
court
member in any case may act later as trial counsel . . . . ”
In
support of his contention that Maj
Flexer was a statutory “investigating officer” under Article 27,
Appellant
notes that Maj Flexer engaged in a variety of activities more
characteristic of
a police officer rather than a prosecutor. According to Appellant,
these
activities resulted in selective prosecution and evidence produced by
use of
questionable investigative techniques.
A.
DEVELOPMENT OF THE “INVESTIGATING OFFICER” DISQUALIFICATION
The
prohibition on an “investigating
officer” serving as a prosecutor in courts-martial was first enacted in
the
1948 legislation amending the Articles of War, popularly known as the
Elston
Act. Selective Service Act of 1948, Pub.
L. No. 80-759, §§ 201-46, 62 Stat. 604, 627-44 (1948) [hereinafter
Elston
Act]. As originally proposed, the
provision was designed to ensure that the position of “investigating
officer”
would not be filled by a person having “the attitude of a prosecutor.” See Hearings on H.R. 2575 to Amend
the Articles of War before Subcomm. No 11, Legal, of the House Comm. on
Armed
Services, 80th Cong. 2036 (1947)(remarks of Rep. Charles H. Elston,
Chairman, and Brigadier General Hubert D. Hoover, Assistant Judge
Advocate General
of the Army); H.R. Rep. No. 80-1034, at 2, 15, 18 (1947).
The
Elston Act contained two pertinent
provisions. The first provision, Article
of War 11, stated that “no person who has acted as member, defense
counsel,
assistant defense counsel, or investigating officer in any case shall
subsequently act in the same case as a member of the prosecution . . .
.” Elston Act § 208. The second provision, Article of War 46,
stated that “[n]o charge will be referred to a general court-martial
for trial
until after a thorough and impartial investigation thereof shall have
been
made,” and referred to the person conducting the impartial proceeding
as “the
investigating officer.” Elston
Act § 222.
In
the aftermath of the 1948 legislation,
the President promulgated the Manual for Courts-Martial (MCM),
U.S. Army, in 1949 (1949 MCM).
Paragraph 6 of the 1949 MCM, governing appointment of
the trial
judge advocate (as the prosecutor was then designated), mirrored the
statutory
disqualification of a person who had served as investigating officer in
the
same case. With respect to the
appointment of a pretrial investigating officer under Article of War
46,
paragraph 35a of the 1949 MCM provided:
“Neither the accuser nor any officer who is
expected to become a member of the prosecution or defense upon possible
trial
of the case will be designated as investigating officer.”
Paragraph
41a, of the 1949 MCM, contained a parallel provision:
The trial
judge advocate must be fair and free from bias, prejudice, or
hostility. If he has acted as a member of
the court,
defense counsel, assistant defense counsel, or investigating officer in
any
case he shall not subsequently act in the same case as trial judge
advocate or
assistant trial judge advocate.
Under
these provisions, the term “investigating officer” in the Articles of
War and
the 1949 MCM referred to a specific statutory position, filled
by a
person required to conduct an impartial investigation prior to referral
of a
case to a general court-martial. Because
the trial counsel, an advocate for a party, would have an institutional
conflict, the statute and the 1949 MCM required the position to
be
filled by a person who would not prosecute the case as trial counsel.
The
UCMJ, which replaced the Articles of
War, as well as the Articles for the Government of the Navy, was
enacted in
1950, and took effect in 1951. Act of
The
1951 edition of the MCM
reflected the statutory prohibition against appointing an investigating
officer
as trial counsel and prohibited appointment of a person to serve as an
Article
32 Investigating Officer if the person was expected to become a member
of the
prosecution. Manual
for Courts-Martial, United States, paras. 6, 34 (1951 ed.)(1951 MCM). The 1951 MCM added an expanded
definition of the term “investigating officer” for purposes of various
disqualifications, including disqualification of trial counsel.
Our
Court considered whether trial counsel
should have been disqualified under these provisions in several cases
arising
in the years immediately following promulgation of the 1951 MCM. United States v. Lee concluded that an
officer’s informal investigation prior to preferral of charges did not
disqualify that officer from serving as trial counsel in a special
court-martial. 1
C.M.A. 212, 218, 2 C.M.R. 118, 124 (1952). Lee
noted that there was a “distinctly
arguable” interpretation of the applicable statutes under which the
disqualification of an “investigating officer” only applied to an
Article 32
investigating officer, but concluded that it was not necessary to rely
on the
statutes because paragraph 64 of the 1951 MCM employed a
“broader view”
of the term.
Subsequent
to these decisions, the pertinent provisions in the 1951 MCM
were
retained, without substantial change, when a revised edition of the MCM
was issued in 1969. Manual
for Courts-Martial, United States, paras. 6a, 34a,
64 (rev. ed. 1969). The MCM
was restructured completely in 1984 to adopt a rule-based format,
separating
binding requirements from non-binding guidance.
See Manual for Courts-Martial,
In
contrast to the pre-1984 editions of the
MCM, the 2002 MCM does not contain a general definition
of the
term “investigating officer.” Instead,
it uses the term “investigating officer” in connection with specific
rules. R.C.M. 405, for example,
implements the formal pretrial investigation procedures required by
Article
32. R.C.M. 405(d)(1)
uses the term “investigating officer” to describe the officer appointed
under
the rule to conduct the investigation.
The same provision also provides expressly that “[t]he
investigating
officer is disqualified to act later in the same case in any other
capacity.”
R.C.M.
912 governs challenges of panel
members for cause. Under R.C.M. 912(f)(1)(F),
a
challenge for cause must be granted if the panel member “[h]as been an
investigating officer as to any offense charged.” The
rule also includes a rule-specific
definition applicable to challenges of panel members for cause:
For
purposes of this rule, “investigating
officer” includes any person who has investigated charges under R.C.M.
405 [a
formal Article 32 investigation] and any person who as counsel for a
member of
a court of inquiry, or otherwise personally has conducted an
investigation of
the general matter involving the offenses charged.
R.C.M.
912(i)(3).
By
contrast, the rule governing
qualification of counsel simply notes in pertinent part that a person
may not
act as trial counsel or assistant trial counsel “in any case in which
that
person is or has been . . . [a]n investigating officer . . . .” R.C.M. 502(d)(4). The procedure for disqualification of counsel
does not refer to specific criteria, but instead notes generally that
“[i]f it
appears that any counsel may be disqualified, the military judge shall
decide
the matter and take appropriate action.”
R.C.M. 901(d)(3).
In
summary, the initial prohibition against
an investigating officer serving as trial counsel, which was
implemented in the
1949 MCM, used the term “investigating officer” to describe the
officer
required to conduct an “impartial” investigation prior to referral of
charges
to a general court-martial -- the predecessor of today’s Article 32
officer. The 1951 MCM provided an
expanded definition that expressly included persons other than the
Article 32
investigating officer. Our Court in Lee
focused on the fact that the definition in the 1951 MCM was
broader than
the statutory term. 1 C.M.A. at 215, 2 C.M.R. at 121. The
President, in the 1951 MCM, exercised his authority to set
forth in the MCM
broader rights than those established under the UCMJ.
See, e.g., United States v. Davis,
47 M.J. 484, 486 (C.M.A. 1998)(noting the
authority of
the President to do so unless such action would clearly contradict the
express
language of the UCMJ).
Having
established, in paragraph 64 of the
1951 MCM, a broader definition of “investigating officer” than
required
by the UCMJ, the President was free in 1984 to take a more narrowly
tailored
approach, so long as the MCM did not set forth a provision
contrary to
or inconsistent with the UCMJ. See Article 36, UCMJ, 10 U.S.C. § 836 (2000). We note that the elimination or tailoring of
a provision from the MCM does not necessarily mean that the
text must be
interpreted in its narrowest light, particularly if a broader
interpretation is
supported by judicial interpretation of the UCMJ, military custom,
tradition,
or parallel civilian practice. In the
present case, however, those factors are not present.
For purposes of disqualification of counsel,
the President has narrowed the term “investigating officer” to its
original
usage – the disqualification of the officer who conducted the
“impartial”
investigation under the predecessor to Article 32 -- and we conclude
that there
is no basis in law to impose a broader judicial construction. We also note that that this appeal does not
require us to address the question of whether there otherwise might be
grounds
for disqualifying trial counsel who, in the same case, served
previously as a
hearing officer under a service-specific regulation requiring a degree
of
neutrality similar to that of an “impartial” Article 32 officer. See United States v. Mann, 50
M.J. 689, 702 (A.F. Ct. Crim. App. 1999)(noting
possible distinction for circumstances involving trial counsel’s prior
participation in a case in a quasi-judicial role).
In
the case before us, trial counsel did
not serve as the Article 32 investigating officer, and Appellant has
not
demonstrated that trial counsel’s activities so departed from the
normal role
of a prosecutor as to make him a de facto Article 32 “investigating
officer.” Cf. United
States
v. Payne, 3 M.J. 354 (C.M.A. 1977) (impropriety of Article 32
officer
receiving ex parte advice from trial counsel). Appellant, at trial, did not present
testimony from either the Article 32 officer or the trial counsel. In the absence of such testimony, and under
the circumstances of this case, we decline to treat Appellant’s
speculation as
to the nature of the interaction between trial counsel and the Article
32
officer as sufficient to demonstrate that trial counsel became a de
facto
Article 32 investigating officer. In
that regard, it is also noteworthy that Appellant challenged the
validity of
the Article 32 investigation on a variety of grounds, including the
actions of
trial counsel, without calling either the Article 32 officer or trial
counsel
as witnesses. The military judge denied
the defense motion, and Appellant has not challenged that ruling on
appeal. Likewise, although Appellant
attempts to raise discovery violations and selective prosecution as
evidence of
trial counsel’s improper role as an investigating officer, Appellant
has not
assigned issues of law in the present case contending that there was
error,
much less prejudicial error, with respect to discovery or selective
prosecution.
IV.
Conclusion
Appellant
has not demonstrated that trial
counsel was disqualified as a matter of due process or as a result of
prior
service in the same case as a statutory “investigating officer.” The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed.