U.S. v. Taylor, 60 M.J. 190

Military Justice Personnel: Staff Judge Advocate: Post-TrialRecommendation

1. a military accused’s best hope for sentence relief from a court-martial judgment comes in the convening authority’s action, and the staff judge advocate’s recommendation to the convening authority plays a pivotal role in an accused’s chances for relief; as a consequence, a disqualified staff judge advocate’s participation in the post-trial review process is a serious deficiency that cannot be said to be a technical matter without impact on the outcome of the proceedings
2. where a defense counsel’s post-trial submission includes allegations of legal error, the staff judge advocate’s advice to the convening authority is particularly important; in this case, where the defense counsel submitted allegations of legal error and the staff judge advocate’s advice was given by one who should have been disqualified from acting, the lack of advice from a properly-qualified staff judge advocate constituted a colorable showing of prejudice, warranting a new post-trial review and action

Military Justice Personnel: Staff Judge Advocate: Qualifications / Disqualifications

1. where the staff judge advocate conceded that an article written by the trial counsel in the base newspaper expressing a negative view of the accused and his rehabilitative potential could be imputed to him, he could not perform the duties entrusted to a neutral staff judge advocate; by agreeing that such an article could be imputed to him, the staff judge advocate created the impression that he had prejudged the appropriateness of clemency in this case; a reasonable observer would no longer feel confident that the staff judge advocate remained neutral when he advised the convening authority concerning appellant’s clemency request

Military Justice Personnel: Convening Authority: Disqualification

1. where an article written by the trial counsel in the base newspaper expressed a negative view of the accused and his rehabilitative potential, the convening authority was not disqualified from participating in the accused’s post-trial review because the record established that the article could not be imputed to him; although the defense counsel argued that because the convening authority was the first person listed in the newspaper’s masthead, he must have known of and approved of the article before it was published, the convening authority swore in an uncontradicted affidavit that before the defense counsel’s submission, he was unaware of the article’s existence and played no role its preparation or publication

Trial Stages: Initial Review: Generally

1. post-trial review is an important stage in the court-martial process; this stage culminates in the convening authority’s highly discretionary decision to approve, reduce, or set aside the court-martial’s findings and sentence; when making that decision, the convening authority will consider not only any submissions by the defense, but also a recommendation prepared by a staff judge advocate or legal officer
2. it is important to ensure that the convening authorities and legal advisors who carry out the post-trial review be, and appear to be, objective; maintaining these individuals’ neutrality protects two important interests: (1) the accused’s right to a fair post-trial review; and (2) the system’s integrity; concern for both fairness and integrity suggests that these neutral roles cannot be filled by someone who has publicly expressed a view prejudging the post-trial review process’s outcome
3. where an article written by the trial counsel in the base newspaper expressed a negative view of the accused and his rehabilitative potential, the convening authority was not disqualified from participating in the accused’s post-trial review because the record established that the article could not be imputed to him; although the defense counsel argued that because the convening authority was the first person listed in the newspaper’s masthead, he must have known of and approved of the article before it was published, the convening authority swore in an uncontradicted affidavit that before the defense counsel’s submission, he was unaware of the article’s existence and played no role its preparation or publication
4. where the staff judge advocate conceded that an article written by the trial counsel in the base newspaper expressing a negative view of the accused and his rehabilitative potential could be imputed to him, he could not perform the duties entrusted to a neutral staff judge advocate; by agreeing that such an article could be imputed to him, the staff judge advocate created the impression that he had prejudged the appropriateness of clemency in this case; a reasonable observer would no longer feel confident that the staff judge advocate remained neutral when he advised the convening authority concerning appellant’s clemency request
5. a military accused’s best hope for sentence relief from a court-martial judgment comes in the convening authority’s action, and the staff judge advocate’s recommendation to the convening authority plays a pivotal role in an accused’s chances for relief; as a consequence, a disqualified staff judge advocate’s participation in the post-trial review process is a serious deficiency that cannot be said to be a technical matter without impact on the outcome of the proceedings
6. where a defense counsel’s post-trial submission includes allegations of legal error, the staff judge advocate’s advice to the convening authority is particularly important; in this case, where the defense counsel submitted allegations of legal error and the staff judge advocate’s advice was given by one who should have been disqualified from acting, the lack of advice from a properly-qualified staff judge advocate constituted a colorable showing of prejudice, warranting a new post-trial review and action

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. whether a staff judge advocate or convening authority is disqualified from participating in the post-trial review is a question of law that we review de novo; as we conduct our analysis, the defense has the initial burden of making a prima facie case for disqualification
2. in a case involving clemency, prejudice can only address possibilities in the context of an inherently discretionary act; accordingly, where post-trial errors occur, we will order a new review only if the defense makes some colorable showing of possible prejudice