U.S. v. Strother, 60 M.J. 476

Military Justice Personnel: Prosecution Function: Trial Counsel

1. a prosecutor will be disqualified as an “interested party” if the prosecutor has a financial or improper personal stake in the outcome of the proceeding
2. the due process limitations on officials performing judicial or quasi-judicial functions are not applicable to those acting in a prosecutorial or plaintiff-like capacity; prosecutors need not be entirely neutral and detached; in an adversary system, they are necessarily permitted to be zealous in their enforcement of the law; we do not suggest, however, that the due process clause imposes no limits on the partisanship of prosecutors; prosecutors are also public officials who must serve the public interest; the traditions of prosecutorial discretion do not immunize from judicial scrutiny cases in which prosecutorial decisions are motivated by improper factors or are otherwise contrary to law
3. the following factors do not transform a prosecutor into an “interested party” who must be disqualified as a matter of due process: (1) the prosecutor was responsible for reviving a dormant investigation; (2) he provided legal advice to commanders and investigators during an earlier phase of the case; (3) he assisted in decisions leading to grants of immunity; (4) this was his first big case for the command; (5) the pressure to secure a conviction for him was great, particularly in view of the grants of immunity to other persons whose culpability arguably was greater; and (6) his performance at trial likely would have been documented on his fitness evaluation reports
4. prosecutors are advisors and advocates for a party, and as such, they need not maintain the degree of neutrality required of judges; prosecutors routinely provide advice and recommendations on the conduct of investigations, grants of immunity, and charging decisions; the fact that such decisions later may be challenged at trial or on appeal does not disqualify an attorney from serving as a prosecutor as a matter of due process; likewise, a prosecutor inevitably faces the pressure of his or her first big case, as well as the pressure generated when advice provided in a pretrial setting comes under challenge at trial; such pressures, which come with the territory inhabited by prosecuting attorneys, do not transform a prosecutor into an interested party; and prosecutors are obligated to deal with such pressures in the context of the prosecutor’s responsibility to ensure both that the guilty not escape and that the innocent not suffer
5. Article 27(a)(2), UCMJ, provides that no person who has acted as an investigating officer in any case may act later as trial counsel; for purposes of disqualification of counsel, the President has narrowed the term “investigating officer” in the MCM to its original usage – the disqualification of the officer who conducted the “impartial” investigation under Article 32, and we conclude that there is no basis in law to impose a broader judicial construction
6. in this case, trial counsel did not serve as the Article 32 investigating officer, and appellant has not demonstrated that trial counsel’s activities so departed from the normal role of a prosecutor as to make him a de facto Article 32 “investigating officer”; consequently, trial counsel was not disqualified as a result of prior service in the same case as a statutory “investigating officer”

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

1. we review the military judge’s ruling on a motion to disqualify counsel under an abuse of discretion standard