U.S. v. Chandler, 80 M.J. 425

Military Justice Personnel: Prosecution Function: Trial Counsel

1. one of the goals of the UCMJ is to assure the accused a thoroughly fair and impartial review of an appellant’s case; towards that goal, Article 6(c), UCMJ, says in pertinent part that no person who served as trial counsel in a case may later serve as a staff judge advocate or legal officer to any reviewing or convening authority upon the same case; a person does not need to be officially detailed as trial counsel in order to act as trial counsel
2. in this case, where trial counsel inserted into the PTA the provision that appellant was required to enter into a reasonable stipulation of fact, the SJA, as legal advisor to the convening authority, was empowered to advise the convening authority regarding whether this condition of the PTA was met; in this regard, it was not inappropriate for the SJA to directly call and inform defense counsel that he would advise the convening authority not to accept the PTA unless appellant agreed to stipulate to the multiple uses of cocaine and marijuana reflected in his confession, especially where trial counsel and the defense paralegal were part of this conversation and trial and defense counsel still had the ability to decide how to handle the stipulation at trial and in presentencing proceedings; the SJA’s pretrial actions did not transform him into a trial counsel, and thus, did not disqualify him under Article 6(c) from advising the convening authority on post-trial matters

Military Justice Personnel: Staff Judge Advocate: Pretrial Advice

1. in this case, where trial counsel inserted into the PTA the provision that appellant was required to enter into a reasonable stipulation of fact, the SJA, as legal advisor to the convening authority, was empowered to advise the convening authority regarding whether this condition of the PTA was met; in this regard, it was not inappropriate for the SJA to directly call and inform defense counsel that he would advise the convening authority not to accept the PTA unless appellant agreed to stipulate to the multiple uses of cocaine and marijuana reflected in his confession, especially where trial counsel and the defense paralegal were part of this conversation and trial and defense counsel still had the ability to decide how to handle the stipulation at trial and in presentencing proceedings; the SJA’s pretrial actions did not transform him into a trial counsel, and thus, did not disqualify him under Article 6(c) from advising the convening authority on post-trial matters
2. where a reasonable stipulation of fact is an explicit term of a PTA between the accused and the convening authority, the content of that stipulation directly concerns the SJA in his role as legal advisor to the convening authority, and convening authorities acting upon the advice of their s\SJAs may very well determine a pretrial agreement should not be entered into because the stipulation offered by the accused is not reasonable
3. an SJA may be disqualified if he or she has a personal interest or feeling in the outcome of a particular case; however, in this case, the fact that the SJA sought the inclusion of appellant's confession in the stipulation does not demonstrate a personal rather than a professional interest in the case

Military Justice Personnel: Staff Judge Advocate: Post-TrialRecommendation

1. one of the goals of the UCMJ is to assure the accused a thoroughly fair and impartial review of his case; towards that goal, Article 6(c), UCMJ, says in pertinent part that no person who served as trial counsel in a case may later serve as a staff judge advocate or legal officer to any reviewing or convening authority upon the same case; a person does not need to be officially detailed as trial counsel in order to act as trial counsel; rather, a person will be disqualified from acting as the SJA if that person performed the duties of a disqualifying position; an SJA may become ineligible when (1) he or she displays a personal interest or feeling in the outcome of a particular case, (2) there is a legitimate factual controversy with defense counsel, or,(3) he or she fails to be objective, such that it renders the proceedings unfair or creates the appearance of unfairness
2. in this case, where trial counsel inserted into the PTA the provision that appellant was required to enter into a reasonable stipulation of fact, the SJA, as legal advisor to the convening authority, was empowered to advise the convening authority regarding whether this condition of the PTA was met; in this regard, it was not inappropriate for the SJA to directly call and inform defense counsel that he would advise the convening authority not to accept the PTA unless appellant agreed to stipulate to the multiple uses of cocaine and marijuana reflected in his confession, especially where trial counsel and the defense paralegal were part of this conversation and trial and defense counsel still had the ability to decide how to handle the stipulation at trial and in presentencing proceedings; the SJA’s pretrial actions did not transform him into a trial counsel, and thus, did not disqualify him under Article 6(c) from advising the convening authority on post-trial matters
3. where a legitimate factual controversy exists between the staff judge advocate and the defense counsel, the staff judge advocate must disqualify himself or herself from participating in the post-trial recommendation
4. an SJA may be disqualified if he or she has a personal interest or feeling in the outcome of a particular case; however, in this case, the fact that the SJA sought the inclusion of appellant's confession in the stipulation does not demonstrate a personal rather than a professional interest in the case
5. in this case, where the defense counsel claimed that the SJA was disqualified post-trial from further advising the convening authority because of the his pretrial actions, the mere fact that an SJA opined on the merits of his own disqualification in the addendum to the SJAR did not itself reflect a personal interest in the case; an SJA must determine whether he or she is disqualified; standing alone, the mere fact that an SJA is required to respond to an allegation that he or she is disqualified cannot be disqualifying itself; to rule otherwise would empower parties to unilaterally determine whether a duly competent authority remains eligible to address a legal issue
6. the SJA’s omission of mitigating factors in his SJAR does not demonstrate a disqualifying personal interest in the case; SJAs are not required to include mitigating information in their SJARs

Military Justice Personnel: Staff Judge Advocate: Qualifications / Disqualifications

1. one of the goals of the UCMJ is to assure the accused a thoroughly fair and impartial review of his case; towards that goal, Article 6(c), UCMJ, says in pertinent part that no person who served as trial counsel in a case may later serve as a staff judge advocate or legal officer to any reviewing or convening authority upon the same case; a person does not need to be officially detailed as trial counsel in order to act as trial counsel; rather, a person will be disqualified from acting as the SJA if that person performed the duties of a disqualifying position; an SJA may become ineligible when (1) he or she displays a personal interest or feeling in the outcome of a particular case, (2) there is a legitimate factual controversy with defense counsel, or,(3) he or she fails to be objective, such that it renders the proceedings unfair or creates the appearance of unfairness
2. in determining whether an SJA is disqualified, an appellate court will consider 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
3. in this case, where trial counsel inserted into the PTA the provision that appellant was required to enter into a reasonable stipulation of fact, the SJA, as legal advisor to the convening authority, was empowered to advise the convening authority regarding whether this condition of the PTA was met; in this regard, it was not inappropriate for the SJA to directly call and inform defense counsel that he would advise the convening authority not to accept the PTA unless appellant agreed to stipulate to the multiple uses of cocaine and marijuana reflected in his confession, especially where trial counsel and the defense paralegal were part of this conversation and trial and defense counsel still had the ability to decide how to handle the stipulation at trial and in presentencing proceedings; the SJA’s pretrial actions did not transform him into a trial counsel, and thus, did not disqualify him under Article 6(c) from advising the convening authority on post-trial matters
4. where a legitimate factual controversy exists between the staff judge advocate and the defense counsel, the staff judge advocate must disqualify himself or herself from participating in the post-trial recommendation
5. an SJA may be disqualified if he or she has a personal interest or feeling in the outcome of a particular case; however, in this case, the fact that the SJA sought the inclusion of appellant's confession in the stipulation did not demonstrate a personal rather than a professional interest in the case
6. in this case, where the defense counsel claimed that the SJA was disqualified post-trial from further advising the convening authority because of the his pretrial actions, the mere fact that an SJA opined on the merits of his own disqualification in the addendum to the SJAR did not itself reflect a personal interest in the case; an SJA must determine whether he or she is disqualified; standing alone, the mere fact that an SJA is required to respond to an allegation that he or she is disqualified cannot be disqualifying itself; to rule otherwise would empower parties to unilaterally determine whether a duly competent authority remains eligible to address a legal issue
7. the SJA’s omission of mitigating factors in his SJAR does not demonstrate a disqualifying personal interest in the case; SJAs are not required to include mitigating information in their SJARs

Military Justice Personnel: Convening Authority: Generally

1. RCM 705(a) authorizes an accused and the convening authority to enter into a pretrial agreement, and the parties may condition the pretrial agreement on a promise to enter into a stipulation of fact concerning offenses to which a plea of guilty or a confessional stipulation will be entered
2. where a reasonable stipulation of fact is an explicit term of a PTA between the accused and the convening authority, the content of that stipulation directly concerns the SJA in his role as legal advisor to the convening authority, and convening authorities acting upon the advice of their s\SJAs may very well determine a pretrial agreement should not be entered into because the stipulation offered by the accused is not reasonable

Trial Stages: Merits: Pretrial Agreements

1. RCM 705(a) authorizes an accused and the convening authority to enter into a pretrial agreement, and the parties may condition the pretrial agreement on a promise to enter into a stipulation of fact concerning offenses to which a plea of guilty or a confessional stipulation will be entered
2. in this case, where trial counsel inserted into the PTA the provision that appellant was required to enter into a reasonable stipulation of fact, the SJA, as legal advisor to the convening authority, was empowered to advise the convening authority regarding whether this condition of the PTA was met; in this regard, it was not inappropriate for the SJA to directly call and inform defense counsel that he would advise the convening authority not to accept the PTA unless appellant agreed to stipulate to the multiple uses of cocaine and marijuana reflected in his confession, especially where trial counsel and the defense paralegal were part of this conversation and trial and defense counsel still had the ability to decide how to handle the stipulation at trial and in presentencing proceedings; the SJA’s pretrial actions did not transform him into a trial counsel, and thus, did not disqualify him under Article 6(c) from advising the convening authority on post-trial matters
3. where a reasonable stipulation of fact is an explicit term of a PTA between the accused and the convening authority, the content of that stipulation directly concerns the SJA in his role as legal advisor to the convening authority, and convening authorities acting upon the advice of their SJAs may very well determine a pretrial agreement should not be entered into because the stipulation offered by the accused is not reasonable

Trial Stages: Initial Review: Post-trial Recommendation

1. the issue of whether an SJA is disqualified from participating in the post-trial review of a case is a question of law which an appellate court review de novo.
2. in determining whether an SJA is disqualified, an appellate court will consider 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
3. in this case, where trial counsel inserted into the PTA the provision that appellant was required to enter into a reasonable stipulation of fact, the SJA, as legal advisor to the convening authority, was empowered to advise the convening authority regarding whether this condition of the PTA was met; in this regard, it was not inappropriate for the SJA to directly call and inform defense counsel that he would advise the convening authority not to accept the PTA unless appellant agreed to stipulate to the multiple uses of cocaine and marijuana reflected in his confession, especially where trial counsel and the defense paralegal were part of this conversation and trial and defense counsel still had the ability to decide how to handle the stipulation at trial and in presentencing proceedings; the SJA’s pretrial actions did not transform him into a trial counsel, and thus, did not disqualify him under Article 6(c) from advising the convening authority on post-trial matters
4. where a legitimate factual controversy exists between the staff judge advocate and the defense counsel, the staff judge advocate must disqualify himself or herself from participating in the post-trial recommendation
5. an SJA may be disqualified if he or she has a personal interest or feeling in the outcome of a particular case; however, in this case, the fact that the SJA sought the inclusion of appellant's confession in the stipulation does not demonstrate a personal rather than a professional interest in the case
6. in this case, where the defense counsel claimed that the SJA was disqualified post-trial from further advising the convening authority because of the his pretrial actions, the mere fact that an SJA opined on the merits of his own disqualification in the addendum to the SJAR did not itself reflect a personal interest in the case; an SJA must determine whether he or she is disqualified; standing alone, the mere fact that an SJA is required to respond to an allegation that he or she is disqualified cannot be disqualifying itself; to rule otherwise would empower parties to unilaterally determine whether a duly competent authority remains eligible to address a legal issue
7. the SJA’s omission of mitigating factors in his SJAR does not demonstrate a disqualifying personal interest in the case; SJAs are not required to include mitigating information in their SJARs

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

1. the issue of whether an SJA is disqualified from participating in the post-trial review of a case is a question of law which an appellate court review de novo.
2. in determining whether an SJA is disqualified, an appellate court will consider 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

Miscellaneous Matters: Manual for Courts-Martial: Force and Effect

1. the provisions of a discussion section to the RCM are not binding but instead serve as guidance