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A convening authority must be reasonably impartial

Rule. A convening authority must be reasonably impartial. A convening authority who is not impartial is an “accuser.” An accuser cannot refer charge(s) to a special or a general court-martial. An accuser with a personal (or other than official) interest in a case has additional limitations on what actions may be taken. Under Article 1(9), UCMJ, “accuser” means a person who (1) signs and swears to charges; (2) directs that charges nominally be signed and sworn to by another; or (3) has an interest other than an official interest in the prosecution of the accused. See also RCM 601(c) discussion. Cf. RCM 1302(b). Accuser not disqualified from convening summary court-martial or initiating administrative measures (Article 15, memorandum of reprimand, Bar to Reenlistment, etc.).

Statutory disqualification.

If a convening authority signs and swears to charges or directs another to do so, she is said to be statutorily disqualified. An accuser who is statutorily disqualified may not refer a case to a general or special court-martial but may appoint an Article 32 Investigating Officer or forward the case with a recommendation as to disposition as long as the disqualification is noted.

McKinney v. Jarvis, 46 M.J. 870 (A. Ct. Crim. App. 1997). A convening authority who becomes an accuser by virtue of preferring charges in an official capacity as a commander is not, per se, disqualified from appointing an Article 32 officer to investigate those charges.

Personal disqualification.

If a person has an other than official interest in the case, that person may be disqualified as an accuser. Besides being denied the right to refer, a personal accuser may not appoint an Article 32 Investigating Officer or make a recommendation when forwarding the case for action.

Test: Whether a reasonable person could impute to the convening authority a personal interest or feeling in the outcome of the case.

United States v. Jeter, 35 M.J. 442 (C.M.A. 1992); see also United States v. Gordon, 2 C.M.R. 161 (1952); United States v. Crossley, 10 M.J. 376 (C.M.A. 1981); United States v. Thomas, 22 M.J. 388, 394 (C.M.A. 1986) (listing examples of unofficial interests that disqualified CAs).

United States v. Nix, 40 M.J. 6 (C.M.A. 1994). Accuser concept also applies to those who forward the charges. Special court-martial convening authority’s (SPCMCA’s) girlfriend (later spouse) was acquainted with accused. Record did not establish that SPCMCA acted without improper motives. SPCMCA must disclose any potential personal interests, and if disqualified, forward without recommendation.

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United States v. Dinges, 55 M.J. 308 (C.A.A.F. 2001). A convening authority who becomes an accuser by virtue of having such a close connection to the offense that a reasonable person would conclude he had a personal interest in the case is disqualified from taking further action as a convening authority. At a GCM the accused was convicted of sodomy arising out of his activities as an assistant scoutmaster with a local troop of the Boy Scouts. The Scout Executive terminated his status as an assistant, and contacted the CA (who was a district chairman of the Big Teepee District, Boy Scouts of America) about the matter.

Prior to preferral of charges, the accused was assigned to the CA’s wing (a special court-martial convening authority level command). The CAAF ordered a DuBay hearing to determine whether the convening authority had an other than official interest that would disqualify him under Article 1(9), UCMJ, and United States v. Nix, 40 M.J. 6 (C.M.A. 1994). Based on facts gathered at the DuBay hearing, the CAAF held the SPCMCA did not become an accuser because he did not have such a close connection to the offense that a reasonable person would conclude he had a personal interest in the case. As such, he was not disqualified from taking action as a CA.

Accuser disqualification – violations of orders of the convening authority.

Rule. United States v. Tittel, 53 M.J. 313 (C.A.A.F. 2000). Accused was convicted of shoplifting and several other offenses and processed for elimination when he was caught shoplifting again from the base PX. The SPCMCA signed an order barring the accused from entering any Navy PX, which the accused violated. The CAAF adopted the Navy court’s reasoning that the order was a routine administrative directive and that the CA was not an “accuser” and that, in any event, the accused waived the issue.

United States v. Byers, 34 M.J. 923 (A.C.M.R. 1992) set aside and remanded, 37 M.J. 73 (C.M.A. 1993), rev’d as to sentence,  40 M.J. 321 (C.M.A. 1994), sent. aff’d. on remand (A.C.M.R., 23 Jan. 1995) (unpub.). Accused charged under Article 90, UCMJ for violating commanding general’s (CG) order not to operate privately owned vehicle on post. Same CG referred the charge to a GCM. CG was not an accuser and involvement was official and not personal. See also United States v. Cox, 37 M.J. 543 (N.M.C.M.R. 1993). Accused
charged under Article 90, UCMJ for violating CA’s restriction order. Imposition of pretrial restriction is an “official act” which does not connect the CA so closely with the offense that a reasonable person would conclude he had anything other than an official interest in the matter.

United States v. Shiner, 40 M.J. 155 (C.M.A. 1994) (whether CA was disqualified because accused allegedly violated CA’s personal order was waived by failure to raise at trial). See also United States v. Garcia, 2003 CCA LEXIS 98 (N-M Ct. Crim. App. Apr. 9, 2003) (unpub.). Applying CAAF’s opinions in United States v. Tittel, 53 M.J. 313 (C.A.A.F. 2000) and United States v. Rockwood, 52 M.J. 98 (C.A.A.F. 1999), court held that accused waived the issue by failing to raise it at trial. In any event, CA was not an “accuser” prohibited
from convening a court-martial where convening authority issued the order the accused is alleged to have violated. The order was not to operate POV on Camp Pendleton. Applying the standard that whether one is an accuser depends on whether, under the particular facts and circumstances . . . a reasonable person would impute to [the convening authority] a personal feeling or interest in the outcome of the litigation,” the court found that the issuance of this routine “simple, written order” did not exceed official interest

Official vs. personal involvement

Rule – official actions will generally not make the CA an “accuser.”
United States v. Ashby
, 68 M.J. 108 (C.A.A.F. 2009). Convening authority appointed another General Officer to conduct a command investigation board into an aircraft accident that killed 20 civilians riding a cable car in the Italian Alps. The accused was eventually court-martialed as the pilot of the aircraft. Convening authority closely monitored the investigation, calling the board on a daily basis and making recommendations about areas of further inquiry; charges were not preferred until the investigation was completed. CAAF held the convening authority not become an accuser based on his hands-on involvement in the investigation, noting the repeated contacts did not show a “personal rather
than a professional interest.”

United States v. Arindain, 65 M.J. 726 (A.F. Ct. Crim. App. 2007). The convening authority, an Air Force GCMCA, referred charges of felony murder, rape, and forcible sodomy to a GCM; the accused was only convicted of unpremeditated murder. Three months after the trial, the convening authority wrote an e-mail to the SJA saying: “My opinion, tho: this was not a sexual assault case . . . we all think they had consensual sex and she expired during their rather abnormal acts.” E-mail was disclosed to them as part of their clemency. On appeal,  argued the convening authority committed prosecutorial misconduct by referring “charges for which he did not have reasonable grounds to believe that offenses triable by a court-martial had been committed.” AFCCA affirmed, reasoning that the SJA provided pretrial advice that provided the GCMCA with an “analysis of the available evidence . . . , and advised him that the evidence supported the specifications and referral was warranted.” Also, the Article 32 investigating officer concluded that reasonable grounds existed to believe the accused committed the offenses. “Sufficient information existed at the time of referral for the convening authority to make his decision, and while his choice of language . . . was regrettable, we do not find that [his e-mails] cast doubt on the propriety of the referral . . . .”

United States v. Diacont, No. 200501425, 2007 CCA LEXIS 94 (N-M. Ct. Crim. App. Mar. 20, 2007) (unpublished). Convening authority was not personally disqualified when he visited the accused and several others in pretrial confinement and asked them “how they were doing, whether they had called their families recently, and what the command could have done to prevent the circumstances in which they found themselves.”

United States v. Voorhees, 50 M.J. 494 (C.A.A.F. 1999). A CA is an “accuser” when the convening authority is so closely connected to the offense that a reasonable person would conclude that the CA had a personal interest in the matter – that it would affect the CA’s ego, family, or personal property, or that it demonstrates personal animosity beyond misguided zeal. Here, CA did not become an accuser even though he threatened to “burn” accused if he did not enter into pretrial agreement.

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United States v. Fisher, 45 M.J. 159 (C.A.A.F. 1996). CA’s mid-trial statements critical of defense counsel will not invalidate previous pretrial actions of selecting members and referring case to trial when CA’s statements do not indicate that he was other than objective in processing court-martial. CA appeared as a Government witness on a MRE 313 motion to suppress a urinalysis. During the recess, the CA stated that “any lawyer that would try to get the results of the urinalysis suppressed was unethical.” No taint attributed to selection process.

CAs suspected of similar offenses may be disqualified

United States v. Kroop, 34 M.J. 628 (A.F.C.M.R. 1992), aff’d, 38 M.J. 470 (C.M.A. 1993). Officer charged with adultery. CA was suspected of similar, albeit unrelated, offenses. In an “abundance of caution over the need to preserve the appearance of propriety” court set aside prior action of CA (approved sentence) and remanded for new SJA’s advice and action by different CA. United States v. Anderson, 36 M.J. 963 (A.F.C.M.R. 1993).

Findings and sentence did not have to be set aside on grounds the CA was
himself suspected of misconduct

Conduct in question was unrelated to accused’s misconduct. United States v. Williams, 35 M.J. 812 (A.F.C.M.R. 1992) aff’d, 41 M.J. 134 (C.A.A.F. 1994). Accused convicted of three rapes, robbery, sodomy, and aggravated assault was not entitled to disqualification of CA where CA was himself suspected of sexual misconduct. Suspected misconduct of CA was of a non-violent nature. No danger of “psychological baggage” being carried over to prejudice the accused.

Disqualification and potential UCI

United States v. Haagenson, 52 M.J. 34 (C.A.A.F. 1999). Accused, a CW2, was charged with fraternization and her case initially referred to a SPCM, convened by the SPCMCA who was also the accuser. The SPCMCA later withdrew the charge, on the basis of the TC’s advice, and referred it to an Article 32 investigation, ultimately sending it forward with a recommendation for a GCM. Evidence revealed that the withdrawal from a SPCM may have been prompted by the XO of the Base Commander, the SPCMCA’s superior, who reportedly yelled “I want [accused] out of the Marine Corps” at the SPCMCA. The military judge found that there was “no support” for the defense contention that command influence tainted the referral, but the CAAF disagreed, finding insufficient evidence to rule either for or against the defense because the record was not properly developed. Case remanded for a fact-finding proceeding on issue of whether SPCMCA became an accuser.

Command as secondary victims

 United States v. Rockwood, 52 M.J. 98 (C.A.A.F. 1999). Accused who was critical of Operation Uphold Democracy in Haiti attempted to “inspect” a prison in order to draw attention to the plight of its inmates. Accused was charged with a variety of offenses, to include disrespect and being absent from his place of duty. He claimed at trial that the entire command was precluded from acting in the case because his behavior so directly challenged his command’s actions that the CA, the commanders, and the members had a conflict of interest. CAAF held that the accused’s personal assertion of such a conflict was insufficient; he produced no evidence that the CA had anything other than an official interest in the case, that there was command influence under Article 37, UCMJ, or that the members were disqualified from serving.

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 United States v. Gudmundson, 57 M.J. 493 (C.A.A.F. 2002). Convening authority testified on dispositive suppression motion. Defense did not request that convening authority disqualify himself from taking post-trial action in the case but alleged on appeal that he should have disqualified himself. The CAAF held that the defense waived the issue by failing to raise it below, in light of the fact that the defense was fully aware of the ground for potential disqualification but chose not to raise it either at trial or in its post-trial submissions. In dicta, CAAF reviews law in area. “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.’ However, ‘if the [convening authority’s] testimony is of an official or disinterested nature only,’ the convening authority is not disqualified.”

Inelastic predisposition

United States v. Davis, 58 M.J. 100 (C.A.A.F. 2003). Accused was convicted of wrongful drug use. In its RCM 1105 submission, the defense alleged that the convening authority publicly commented that “people caught using illegal drugs would be prosecuted to the fullest extent, and if they were convicted, they should not come crying to him about their situations or their families[’].” Government did not dispute that the convening authority made the statements. After reviewing the law on disqualification of convening authorities to take post-trial action, and applying a de novo standard of review, the CAAF held that the statements displayed an inelastic attitude toward the performance of the convening authority’s post-trial responsibilities that disqualified him from taking post-trial action on accused’s case. The comments “lacked balance and transcended a legitimate command concern for crime or unlawful drugs.” Action set aside, record returned to the Air Force TJAG for a new review and action before a different convening authority.

Why does statutory vs. personal disqualification matter?

It will affect the range of options available.

  • Action contemplated
  • If statutorily disqualified
  • If personally disqualified

Appointing Article 32 May appoint Article 32 IO May not appoint investigating officer (IO) Article 32 IO Dismissal of charges May dismiss May dismiss Disposition by other means May dispose of case via May dispose of case via Article 15, Letter of Article 15, Letter of Reprimand, etc. Reprimand, etc.Convening a court martial May convene a SCM, but May convene a SCM, but not a SPCM or a GCM not a SPCM or a GCM Forwarding to superior May forward with May forward but may not recommendation as to make recommendation disposition (must note (must note personal statutory disqualification) disqualification)

The “Junior Accuser” Concept

Commander who is subordinate to “accuser” may not convene a general or special court-martial. See RCM 504(c)(2) and Articles 22(b)
and 23(b): “If . . . such an officer is an accuser, the court shall be convened by superior competent authority.” See also United States v. Corcoran, 17 M.J. 137 (C.M.A. 1984).

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Disqualification of legal officer

United States v. Edwards, 45 M.J. 114 (C.A.A.F.
1996). An O-4 officer who served as the legal officer for the case in the pretrial and post-trial stages was disqualified from preparing the post-trial recommendation. Officer
preferred 3 charges and 31 specifications of larceny, forgery, and false-identity offense against accused; conducted a videotaped interrogation of accused that resulted in a confession; acted as evidence custodian during the pretrial stages of the court-martial; and defense counsel only became aware of legal officer’s involvement after trial and
completion of post-trial recommendation.

Accuser issue is not jurisdictional – failure to raise at trial may result in waiver

United States v. Shiner, 40 M.J. 155 (C.M.A. 1994) (assuming CA was an accuser, his failure to forward the charges to the next higher level of command was a non-jurisdictional error, which was waived by accused’s failure to raise it at court-martial). See also Tittel; United States v. Voorhees, 50 M.J. 494 (C.A.A.F. 1999). CA did not become an accuser by threatening to “burn” accused if he did not enter into PTA; even if he did, accused affirmatively waived issue at trial.

Other Referral Issues.

United States v. Guidi, No. 200600493, 2007 CCA LEXIS 10 (N-M. Ct. Crim. App. Jan. 30, 2007) (unpublished). The signature on the referral portion of the accused’s charge sheet was illegible, and noted next to the signature, in writing was “1st Sgt By direction.” Typed next to the signature was “For the Commanding Officer.” The additional charge sheet was executed in the same manner, except the notation “1st Sgt” was lacking. The court concluded that a Marine Corps First Sergeant must have signed the charge sheets. However, the court held that it is not a jurisdictional defect for the convening authority to allow another to sign on his behalf. The N-MCCA stated, “[p]rovided his actions are personally made, it is not necessary that he actually take hold of a pen.”

United States v. Ross, No. 36139, 2006 CCA LEXIS 358 (A.F. Ct. Crim. App. Dec. 13, 2006) (unpublished). The accused argued that the GCMCA was improperly appointed to command and was not a proper convening authority. The GCMCA was an Air Force colonel (O-6) and was appointed as the Commander of the Third Air Force over two brigadier generals. This appointment was in violation of the applicable Air Force regulation. The GCMCA referred the case to trial by general court-martial, the accused was arraigned, and the case was recessed for 20 days. During the recess, command of the Third Air Force passed to a major general, who replaced five of the nine panel members in the case. The accused was re-arraigned and tried. At no time did the accused object to the original referral. The AFCCA held that the court-martial was properly convened, reasoning that, when an officer is in command, he may exercise the court-martial convening power that attaches to that command. Furthermore, although the appointment violated the Air Force regulation, jurisdiction still attached. “[A]ppellate courts are not justified in attaching jurisdictional significance to service regulations in the absence of their express  characterization as such by Congress.” Finally, any error in the referral was cured by the successor GCMCA who took action on the sentence. See also United States v. Stamper, No. 36191, 2006 CCA LEXIS 364 (A.F. Ct. Crim. App. Dec. 15, 2006) (unpublished).

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