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Overview of the other court-martial personnel

Staff Judge Advocates

Overview of staff judge advocates as other court-martial personnel: Disqualification – in general

United States v. Gutierrez, 57 M.J. 148 (C.A.A.F. 2002). The accused pled guilty to multiple specifications of larceny, conspiracy to commit larceny, robbery, conspiracy to commit robbery and receiving stolen property. Prior to entry of pleas, the accused moved to dismiss all charges and specifications for lack of speedy trial. The Chief of Justice testified in opposition to the motion and the military judge denied the motion. Later, the COJ assumed duties as the SJA and prepared the post-trial recommendation (PTR) in the accused’s case.

Military defense lawyers responded to the PTR claiming that the COJ was disqualified from preparing the PTR because of her involvement in the case, specifically her testimony in opposition to the speedy trial motion. Since Government counsel assumed a prosecutorial role in accused’s case prior to her  appointment as SJA, she was disqualified from preparing the SJA post-trial recommendation which involved evaluating the prosecution. While a staff legal officer who merely gives general advice to prosecutors or investigators is not disqualified from participating in the post-trial process, when the same advisor becomes a participant in the prosecution, she is disqualified.

United States v. Taylor, 60 M.J. 190 (C.A.A.F. 2004). Eight days after the accused’s court-martial, trial counsel published an article in the base newspaper warning commanders to properly prepare adverse personnel records. The article resulted from the trial counsel’s inability to admit the accused’s adverse personal records, because of numerous administrative errors, which the trial counsel characterized as a disservice to justice.

Based on the article, the defense sought the disqualification of the SJA. The SJA, while stating the article could be imputed to him in an addendum

recommendation, took action on the case. The CAAF held where a SJA imputes a disqualification to himself his participation in the post-trial review process is error, that the accused made a “colorable showing of prejudice,” and returned the case for a new post-trial review.

Disqualification – performing trial counsel duties can effectively cause staff judge
advocate to be “trial counsel.”

 United States v. Stefan, 69 M.J. 256 (C.A.A.F. 2010). Chief of Justice caused charges to be served on the accused (a duty reserved for detailed trial counsel under RCM 602) and then signed charge sheets as “Trial Counsel.” The Chief of Justice later, in her capacity as Acting SJA, signed the addendum to the post-trial staff judge advocate’s recommendation (SJAR), recommending the convening authority not grant clemency. The military defense lawyers argued that under Article 6(c), no person who has acted as trial counsel may later act as SJA in the same case. CAAF held the Acting SJA was disqualified based her limited administrative actions as trial counsel. However, the court affirmed, finding the error did not prejudice the accused.

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Disqualification – individual cannot serve as SJA and military judge in same case

Under RCM 1106(b) and Article 6(c), UCMJ, a person cannot serve as the SJA and military judge in the “same case.” RCM 1106(b) governs the post-trial SJA recommendation. Article 6(c) more broadly governs action an SJA assisting “any reviewing authority.” See United States v. Moorefield, 66 M.J. 170 (C.A.A.F. 2008) (per curiam). The staff judge advocate (SJA) served as a military judge in a prior, unrelated, court-martial of the accused.

On appeal, the Air Force Law Review defense argued the SJA should have been disqualified, citing RCM 1106 and Article 6, UCMJ. In a short per curiam opinion, the CAAF held the SJA was not disqualified. The two courts-martial were several years apart and involved different victims and evidence. The judge advocate properly acted as SJA and military judge in the two cases as they were “neither the same case for purposes of RCM 1106 or Article 6, UCMJ, nor the same matter, for purposes of [Navy professional responsibility rules].”

Processing immunity requests

United States v. Ivey, 55 M.J. 251 (C.A.A.F. 2001). At issue was whether Government failed to process the accused’s requests for immunity for four civilian witnesses. Here, the CA did not deny the defense request for immunity until after trial and chose not to forward the request to Department of Justice. In addition, military judge denied the defense request to grant immunity or to abate the proceedings to wait for CA action. The CAAF held trial counsel and SJAs do not have the authority to de facto deny a request for immunity by withholding it from the convening authority.

All requests for immunity, from either the Government or the defense, must be submitted to  the CA for a decision; the CA does not have to forward an immunity request for a civilian to DOJ if the CA intends to deny that request; and all three prongs of RCM 704(e) must be met before a military judge may overrule a CA’s decision to deny a request for immunity: (1) the witness intends to invoke the right against self-incrimination to the extent permitted by law if called to testify; (2) Government has engaged in discriminatory use of immunity to obtain a tactical advantage, or the Government, through its own overreaching, has forced the witness to invoke the privilege against self-incrimination; and (3) the witness’ testimony is material, clearly exculpatory, not cumulative, not obtainable from any other source and does more than merely affect the credibility of other witnesses. In this case, the military judge did not abuse his discretion by refusing to abate proceedings (to wait for CA action) where he found there had been no discriminatory use of immunity or Government overreaching, and proffered testimony was not clearly exculpatory.

Pocket Immunity

United States v. Jones, 52 M.J. 60 (C.A.A.F. 1999). Accused was charged with conspiracy to submit a false claim, larceny, and other offenses. His co-accused were offered punishment under Article 15 if they agreed to testify against the accused. When the co-conspirators invoked their rights and seemed hesitant to cooperate, the SJA called the RDC and said that the three soldiers would be court-martialed if they did not testify in accordance with their agreement. The CAAF said the informal agreements were tantamount to a grant of de facto immunity, that the President had not formulated rules governing such “informal immunity,” but that there was no command influence and no material prejudice to the accused.

Article 32 Investigating Officers

Discussion of article 32 investigating officers as other court-martial personnel: United States v. Holt, 52 M.J. 173 (C.A.A.F. 1999). Article 32 investigating officer recommended accused’s case be referred capital for his alleged murder of a fellow biker. After referral, the Article 32 investigating officer attended a forensic evidence course and, upon returning to the command, gave trial counsel the name and phone number of a forensic expert.

Ultimately, this expert testified for Government that the spatter patterns on jeans seized from the accused were consistent with a stabbing. CAAF noted that an “investigating officer is disqualified” from acting subsequently “in the same case in any other capacity” under RCM 405(d)(1), and that his provision of information solely to the assigned prosecutor may have created at least the appearance of impropriety by providing trial counsel with information that was neither transmitted to the commander who ordered the investigation nor served on the accused. Nevertheless, the court found no prejudicial error that would warrant giving the accused a new trial; the decision to submit the jeans for testing and to call the expert witness were solely the decisions of the trial counsel.


Discussion of the bailiff as other court-martial personnel: RCM 502(e). Cannot be a witness. United States v. Martinez, 40 M.J. 82 (C.M.A. 1994). Military judge committed prejudicial error when, during sentencing deliberations, he conducted an ex-parte communication with bailiff.

Court Reporters

Discussion of court reporters as other court-martial personnel: RCM 502(e). See United States v. Yarbrough, 22 M.J. 138 (C.M.A. 1986). Accuser improperly acted as court reporter but reversal not required where accuser only operated microphone system and did not transcribe proceedings or prepare the record of trial.


Overview of drivers as other court-martial personnel:

United States v. Aue, 37 M.J. 528 (A.C.M.R. 1993). Military judge’s assigned driver told witnesses waiting to testify that the MJ told her that “he had already decided the case.” Military judge addressed issue at post-trial Article 39(a) hearing as motion for mistrial and found that: (1) he had never made such a statement; and (2) that driver was trying to impress witnesses with her apparent “inside information.” ACMR returns for DuBay hearing and indicates that MJ should have recused himself at the post-trial Article 39(a) session. Otherwise, no misconduct by military judge and no prejudice to accused.

United States v. Knight, 41 M.J. 867 (A. Ct. Crim. App. 1995). Three senior enlisted court members solicited daily information from driver about his opinions regarding witness veracity, medical testimony, and what transpired during Article 39(a) sessions. Defense motion for mistrial made during deliberations denied. CA grants immunity to members in post-trial Article 39(a) session. ACCA said SJA, CA, and military judge “were remiss” in failing to apply presumption of prejudice absent clear and positive showing by Government.


Definition of interpreter as other court-martial personnel: RCM 502(e). Must be qualified and sworn.

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