U.S. v. Voorhees, 50 M.J. 494

Military Justice Personnel: Defense Function: Detailed Military Counsel

1. counsel was not ineffective for failing to object to qualifications of the convening authority to take post-trial action where the record does not establish that the convening authority was disqualified and counsel may tactically elect to forego possible objection in order to seek further favorable treatment from the convening authority

Military Justice Personnel: Defense Function: Civilian Counsel

1. counsel was not ineffective for failing to object to qualifications of the convening authority to take post-trial action where the record does not establish that the convening authority was disqualified and counsel may tactically elect to forego possible objection in order to seek further favorable treatment from the convening authority

Military Justice Personnel: Convening Authority: Action

1. it was not plain error for convening authority to take action where: (1) appellant and counsel clearly knew about statements of convening authority and possible impact on qualifications; (2) no objection was made at trial; (3) no post-trial objection was made to the convening authority taking action; and (4) appellant actively sought clemency from the convening authority

Military Justice Personnel: Convening Authority: Disqualification

1. a convening authority is an “accuser” when the convening authority is so closely connected to the offense that a reasonable person would conclude that the convening authority had a personal interest in the matter - that it would affect the convening authority’s ego, family, or personal property, or that it demonstrates personal animosity beyond misguided zeal
2. record lacked evidence of personal interest or bias on the part of the convening authority where, although all the circumstances were known to appellant and his counsel and although the military judge focused attention on the potential issue, appellant passed up the opportunity to litigate whether convening authority’s demeanor, his tone, or the context of his statements to the effect that he would “burn” appellant made him an accuser

Trial Stages: Initial Review: Action

1. it was not plain error for convening authority to take action where: (1) appellant and counsel clearly knew about statements of convening authority and possible impact on qualifications; (2) no objection was made at trial; (3) no post-trial objection was made to the convening authority taking action; and (4) appellant actively sought clemency from the convening authority

Trial Stages: Appeals: Preservation of Error / Plain Error

1. it was not plain error for convening authority to take action where: (1) appellant and counsel clearly knew about statements of convening authority and possible impact on qualifications; (2) no objection was made at trial; (3) no post-trial objection was made to the convening authority taking action; and (4) appellant actively sought clemency from the convening authority