Staff Judge Advocates
Overview of staff judge advocates as other court-martial personnel:
1. Disqualification – in general.
a. 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. DC 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.
b. 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.
2. 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. Defense 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.
3. 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
4. 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.
5. 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.