Disqualification of the SJA to Prepare Post-Trial Recommendations

  1. Under RCM 1106(b), the SJA may be disqualified from preparing the post-trial recommendation when the sufficiency or correctness of the earlier action is placed in issue.                                                        (1) United States v. Lynch , 39 MJ 223(CMA 1994). Accused questioned the pretrial advice in a motion prior to trial. “[W]here a legitimate factual controversy exists between the SJA and the Defense Counsel; the SJA must disqualify himself from participating in the post-trial recommendation.
  2. Inappropriate comments by the SJA in the pretrial advice may disqualify the SJA from preparing the post-trial recommendation. (1) United States v. Plumb, 47 MJ 771 (A. F. Ct. Crim. App. 1997). In the pretrial advice, the SJA referred to the accused, an Air Force OSI CPT, as a “shark in the waters, [who] goes after the weak and leaves the strong alone.” The Air Force court said that such a comment was “so contrary to the integrity and fairness of the military justice system that it has no place in a pretrial advice.” The comment (in conjunction with other errors) resulted in the findings and sentence being set aside.
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