RCM 1106 requires a written SJA recommendation (SJAR)

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Before the CA takes action on a GCM with any findings of guilty or a SPCM with an adjudged BCD or confinement for a year.

Disqualification of persons who have previously participated in the case.

  1. Who is disqualified? The accuser, investigating officer, court members, MJ, any TC,DC, or anyone who “has otherwise acted on behalf of the prosecution or defense.” Article 46, UCMJ (2015)UCMJ.
    1. United States v. Taylor , 60 M.J. 190 (C.A.A.F. 2004). SJA of TC who authored article in base newspaper stating that the interests of justice were not met in a recent court-martial because of administrative errors resulting in the inadmissibility of counseling documents was disqualified from participating in the post-trial process. The SJA could have disclaimed the article, but instead said that the article could be imputed to him. His failure to disqualify himself was error.
    2. United States v. Gutierrez , 57 M.J. 148 (C.A.A.F. 2002). Chief of Justice who testified on the merits in opposition to a defense motion to dismiss for lack of speedy trial and who later became the SJA, is disqualified from participating in the post-trial process. Therefore, it was error for that officer to prepare the SJAR and the subsequent addendum. The court noted, “Having actively participated in the preparation of the case against appellant, [that officer] was not in a position objectively to evaluate the fruits of her efforts.” Id . at 149.
    3. United States v. Johnson-Saunders , 48 M.J. 74 (C.A.A.F. 1998). The Assistant TC, as the Acting Chief of Military Justice, prepared the SJAR. The SJA added only one line, indicating he had reviewed and concurred with the SJAR. The DC did not object when served with the SJAR. The court held that the ATC was disqualified to prepare the SJAR. The court went on to hold that there was no waiver and there was plain error. The court returned the case for a new SJAR and action. The court created the test for non-statutory disqualification: whether the trial participation of the person preparing the SJAR “would cause a disinterested observer to doubt the fairness of the post-trial proceedings.”
    4. United States v. Sorrell, 47 M.J. 432 (C.A.A.F. 1998). CoJ wrote the SJAR. Dispute developed between the accused and the CoJ over whether the CoJ promised the accused he would recommend clemency if the accused testified against other soldiers (which he did). The court avoided the issue; if there was error, it was harmless because the PTR recommended six months clemency, which the CA approved.
    5. United States v. Stefan, No. 20081097 (A. Ct. Crim. App. Jan. 29, 2010) (unpublished), review granted , 69 M.J. 171 (C.A.A.F. 2010). This case was submitted on its merits. The majority affirmed the findings and the sentence without comment. The dissent found that a disqualified officer advised the convening authority. The officer at issue first appeared in the record of trial as “Chief, Military Justice,” by signing the referral of both the charges and additional charges. Next, she appeared as trial counsel and served the referred charges and additional charges on appellant. Third, she acted again as “Chief, Military Justice” by granting the defense request for extension of time to submit post-trial matters. Next, she signed the promulgating order and the chronology sheet as “Acting Staff Judge Advocate.” Then, on the same day, she signed the court-martial data sheet as three separate persons: “Trial Counsel,” “Convening Authority or His/Her Representative,” and “Staff Judge Advocate of General Court-Martial Convening Authority or Reviewing Staff Judge Advocate.” Finally, on that same day, she signed the addendum to the SJAR as “Acting SJA.” The dissent spent time discussing the roles of the chief of military justice and the fact that the “modern chief of military justice in the Army is in no way, shape, or form—not in concept or execution—‘neutral,’ and has no business advising the convening authority in the post-trial process.” As a result, the dissent would have found prejudice by the numerous roles played by the chief of military justice in this case, and granted relief.
    6. United States v. Stefan, 69 M.J. 256 (C.A.A.F. 2010). The CAAF agreed with the dissent from the court below and found that the Chief of Justice was statutorily disqualified under Article 6(c), UCMJ, primarily because she served the referred charges and the additional charges on the accused, a “task traditionally reserved for detailed trial counsel, see R.C.M. 602.” However, the CAAF held that the appellant was not prejudiced and granted no relief. Of particular note to the CAAF was the fact that anyone who acts as a trial counsel is disqualified under the plain reading of Article 6(c), UCMJ, and not just those who are specifically detailed as trial counsel under Article 27, UCMJ.
    7. United States v. Ramos, No. 20090099, 2010 WL 3946329 (A. Ct. Crim. App. July 19, 2010) (unpublished), aff’d , 69 M.J. 475 (C.A.A.F. Jan. 11, 2011) (summary disposition). This case was submitted on its merits. The majority affirmed the findings and the sentence without comment. The dissent found that a disqualified officer advised the convening authority. The facts here are very similar to the Stefan case above, because the same office of the staff judge advocate and the same officer were involved. The dissent held that this case is very similar to the Stefan case above, except for the fact that the main document at issue in this case was the SJAR. In Stefan , the main document at issue was the addendum. As a result, the defense counsel had an opportunity to object to the disqualified officer acting in this case, whereas in Stefan , the defense counsel had no opportunity to object to the disqualified officer acting on the addendum. As a result, the dissent would have remanded the case for at least “a new review and action.”
  2. Also disqualified is the SJA who must review his own prior work ( United States v.Engle , 1 M.J. 387 (C.M.A. 1976)); or his own testimony in some cases ( United States v. Rice , 33 M.J. 451 (C.M.A. 1991)); United States v. Choice , 49 C.M.R. 663 (C.M.A. 1975). United States v. McCormick , 34 M.J. 752 (N.M.C.M.R. 1992) (holding that PTR insufficient if prepared by a disqualified person, even if filtered through and adopted by the SJA). See RCM 1106(b) discussion.
  3. “Material factual dispute” or “legitimate factual controversy” required. United Statesv. Lynch , 39 M.J. 223, 228 (C.M.A. 1994). See United States v. Bygrave , 40 M.J. 839 (N.M.C.M.R. 1994) (holding that PTR must come from one free from any connection with a controversy); United States v. Edwards , 45 M.J. 114 (C.A.A.F. 1996). Legal officer (non-judge advocate) disqualified from preparing PTR because he preferred the charges, interrogated the accused, and acted as evidence custodian in case. Mere prior participation does not disqualify, but involvement “far beyond that of a nominal accuser” did so here.
  4. Who is not disqualified?
    1. The SJA who has participated in obtaining immunity or clemency for a witness in the case. United States v. Decker , 15 M.J. 416 (C.M.A. 1983).
    2. Preparation of pretrial advice challenged at trial not automatically disqualifying; factual determination . United States v. Caritativo , 37 M.J. 175 (C.M.A. 1993).
    3. United States v. McDowell , 59 M.J. 662 (A.F. Ct. Crim. App. 2003). SJA whose initial SJAR was deemed defective on appeal is not per se disqualified when the error is a result of a change in the law as opposed to bad or erroneous advice. Changes in the law affecting the validity of an SJAR do not create a “personal interest” in the case; however, erroneous or bad advice in an SJAR, returned to the same SJA for a second review and action may disqualify that SJA if it is shown he or she has an other than official interest in the case.
  5. How do you test for disqualification outside the scope of the rules? Do the officer’sactions before or during trial create, or appear to create, a risk that the officer will be unable to evaluate the evidence objectively and impartially? United States v. Newman , 14 M.J. 474 (C.M.A. 1983). See United States v. Kamyal , 19 M.J. 802 (A.C.M.R. 1984) (“a substantial risk of prejudgment”). United States v. Johnson-Saunders , 48 M.J. 74 (C.A.A.F. 1998) (whether the involvement by a disqualified person in the PTR preparation “would cause a disinterested observer to doubt the fairness of the post-trial proceedings”)
  6. RCM 1106(c). When the CA has no SJA or SJA is disqualified (unable to evaluateobjectively and impartially), CA must request assignment of another SJA, or forward record to another GCMCA. Make sure documentation is included in the record.
    1. Informal agreement between SJAs is not sufficient. United States v. Gavitt , 37 M.J. 761 (A.C.M.R. 1993).
    2. United States v. Hall , 39 M.J. 593 (A.C.M.R. 1994). SJA used incorrect procedure to obtain another SJA to perform post-trial functions. Court holds that failure to follow procedures can be waived.
    3. Deputies cannot sign SJARs. United States v. Crenshaw , No. 9501222 (A. Ct. Crim. App. 1996) (unpublished). Fact that Deputy Staff Judge Advocate (DSJA) improperly signed PTR as “Deputy SJA” rather than “Acting SJA” did not require corrective action where PTR “contained nothing controversial” and where SJA signed addendum that adhered to DSJA’s recommendation.
    4. Who should author the SJAR? The SJA. United States v. Finster , 51 M.J. 185 (C.A.A.F. 1999), where a non-qualified individual signed the SJAR, the court concluded there was manifest prejudice. United States v. Gatlin , 60 M.J. 804 (N-M. Ct. Crim. App. 2004) (refusing to apply a presumption of regularity to a PTR signed by a LT Stampher (not the SJA) when there was no explanation in the record as to why he prepared and signed the PTR; holding, however, that appellant did not make a showing of any prejudice).

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