2020 (October Term)
United States v. Chandler, 80 M.J. 425 (one of the goals of the UCMJ is to assure the accused a thoroughly fair and impartial review of his case; towards that goal, Article 6(c), UCMJ, says in pertinent part that no person who served as trial counsel in a case may later serve as a staff judge advocate or legal officer to any reviewing or convening authority upon the same case; a person does not need to be officially detailed as trial counsel in order to act as trial counsel; rather, a person will be disqualified from acting as the SJA if that person performed the duties of a disqualifying position; an SJA may become ineligible when (1) he or she displays a personal interest or feeling in the outcome of a particular case, (2) there is a legitimate factual controversy with defense counsel, or,(3) he or she fails to be objective, such that it renders the proceedings unfair or creates the appearance of unfairness).
(in determining whether an SJA is disqualified, an appellate court will consider 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, where trial counsel inserted into the PTA the provision that appellant was required to enter into a reasonable stipulation of fact, the SJA, as legal advisor to the convening authority, was empowered to advise the convening authority regarding whether this condition of the PTA was met; in this regard, it was not inappropriate for the SJA to directly call and inform defense counsel that he would advise the convening authority not to accept the PTA unless appellant agreed to stipulate to the multiple uses of cocaine and marijuana reflected in his confession, especially where trial counsel and the defense paralegal were part of this conversation and trial and defense counsel still had the ability to decide how to handle the stipulation at trial and in presentencing proceedings; the SJA’s pretrial actions did not transform him into a trial counsel, and thus, did not disqualify him under Article 6(c) from advising the convening authority on post-trial matters).
(where a legitimate factual controversy exists between the staff judge advocate and the defense counsel, the staff judge advocate must disqualify himself or herself from participating in the post-trial recommendation).
(an SJA may be disqualified if he or she has a personal interest or feeling in the outcome of a particular case; however, in this case, the fact that the SJA sought the inclusion of appellant's confession in the stipulation did not demonstrate a personal rather than a professional interest in the case).
(in this case, where the defense counsel claimed that the SJA was disqualified post-trial from further advising the convening authority because of the his pretrial actions, the mere fact that an SJA opined on the merits of his own disqualification in the addendum to the SJAR did not itself reflect a personal interest in the case; an SJA must determine whether he or she is disqualified; standing alone, the mere fact that an SJA is required to respond to an allegation that he or she is disqualified cannot be disqualifying itself; to rule otherwise would empower parties to unilaterally determine whether a duly competent authority remains eligible to address a legal issue).
(the SJA’s omission of mitigating factors in his SJAR does not demonstrate a disqualifying personal interest in the case; SJAs are not required to include mitigating information in their SJARs).
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).
(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).
2002
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).
1999