U.S. v. Stefan, 69 M.J. 256

Military Justice Personnel: Staff Judge Advocate: Qualifications / Disqualifications

1. Article 6(c), UCMJ, provides that no person who has acted as member, military judge, trial counsel, assistant trial counsel, defense counsel, assistant defense counsel, or investigating officer in any case may later act as a staff judge advocate or legal officer to any reviewing authority upon the same case; RCM 1106(b) echoes this sentiment in similar language
2. the plain text of Article 6(c), UCMJ, states that an individual who acted as trial counsel is disqualified from acting as the SJA; the government’s argument that only those persons that were detailed as trial counsel in accordance with Article 27, UCMJ, are disqualified under Article 6(c), UCMJ, is rejected; the text does not support such a narrow reading of the statute, as disqualification does not require that a person be detailed as trial counsel, only that the person act as such
3. a person will be disqualified from acting as the SJA if that person performed the duties of a disqualifying position; as for when a person has performed the duties of a disqualifying position, some relevant considerations include the action taken, the position of the person that would normally take that action, and the capacity in which the action is claimed to have been taken
4. in this case, the chief of military justice performed some duties of, and thus acted as, trial counsel; she not only caused the charges to be served on appellant, a task traditionally reserved for detailed trial counsel, but she also acknowledged performing that act as trial counsel in block 15 of the two charge sheets; as such, she was disqualified by Article 6(c), UCMJ, and RCM 1106(b) from acting as the SJA and preparing the SJAR’s addendum in appellant’s case
5. SJA recommendations prepared by a disqualified officer are not void; rather an appellate court tests for prejudice under Article 59(a), UCMJ, which requires material prejudice to the substantial rights of the accused; to find reversible error, an appellant must, inter alia, make some colorable showing of possible prejudice
6. although the SJAR addendum in this case was prepared by a disqualified officer, appellant was not prejudiced by the error, where appellant did not even raise this issue on appeal to the CCA and the involvement by the disqualified officer in appellant’s case was minimal; in this case, nothing indicates that the disqualified officer actively prosecuted the case or took a firm stance on sentencing, and the addendum to the SJAR merely echoed the succinct recommendation of no clemency in the SJAR itself without further elaboration of appellant’s case; considering the circumstances of this case, including the host of offenses committed by appellant and the seriousness of some of his crimes, there is nothing that would suggest that another SJA would have made a different recommendation on appellant’s clemency request

Core Criminal Law Subjects: Crimes: Article 121 - Larceny and Wrongful Appropriation Pre-2019 offenses

1. one should not underestimate the seriousness of barracks’ larceny; from basic training onwards, servicemembers are taught to trust their fellow servicemembers with their life, and barracks’ theft substantially damages that trust

Trial Stages: Appeals: Court of Appeals for the Armed Forces

1. the CAAF will normally not consider any facts outside of the record established at the trial and the Court of Criminal Appeals, unless good cause is shown

Trial Stages: Appeals: Harmless / Prejudicial Error

1. although the SJAR addendum in this case was prepared by a disqualified officer, appellant was not prejudiced by the error, where appellant did not even raise this issue on appeal to the CCA and the involvement by the disqualified officer in appellant’s case was minimal; in this case, nothing indicates that the disqualified officer actively prosecuted the case or took a firm stance on sentencing, and the addendum to the SJAR merely echoed the succinct recommendation of no clemency in the SJAR itself without further elaboration of appellant’s case; considering the circumstances of this case, including the host of offenses committed by appellant and the seriousness of some of his crimes, there is nothing that would suggest that another SJA would have made a different recommendation on appellant’s clemency request

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

1. whether Article 6(c), UCMJ, and RCM 1106(b) disqualify an individual from acting as the SJA is a question of law, which an appellate court reviews de novo
2. SJA recommendations prepared by a disqualified officer are not void; rather an appellate court tests for prejudice under Article 59(a), UCMJ, which requires material prejudice to the substantial rights of the accused; to find reversible error, an appellant must, inter alia, make some colorable showing of possible prejudice