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Tim Bilecki

Disqualification – Staff Judge Advocate

United States v. Stefan, No. 20081097 (A. Ct. Crim. App. Jan. 29, 2010) (summary disposition) (unpublished), review granted, 69 M.J. 171 (C.A.A.F. 2010) deals with the issue of disqualification of staff judge advocate. An Army judge advocate served in several capacities in court-martial processing. First, she signed the referral of charges and additional charges as “Chief, Military Justice.” Second, she signed as “Trial Counsel” for serving the charges and additional charges on the accused. Third, as “Chief, Military Justice,” she approved a defense request for additional time to submit post-trial matters. Fourth, she signed a promulgating order and Chronology Sheet as “Acting Staff Judge Advocate.” Fourth, she signed the Court-Martial Data Sheet. Finally (and most significant), she signed as the Acting SJA for the addendum to the Staff Judge Advocate Recommendation, writing that she had considered the defense post-trial submissions and stated that clemency was not warranted. The ACCA affirmed in a summary disposition without further opinion. Judge Ham dissented and this dissent led to the CAAF granting review.

Judge Ham held that under Article 6(c), “No person who has acted as . . . trial counsel, assistant trial 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.” The well reasoned dissenting opinion discusses several cases regarding this disqualification and concludes the officer making the recommendation must be neutral.

Per Article 6(c), the judge advocate signed documents as “trial counsel,” which disqualified her from acting as the SJA in the same case. The face of the statute leaves no ambiguity and the judge advocate in this case is listed in the record as both trial counsel and Acting Staff Judge Advocate.

The dissent noted that “chief of military justice” is not defined or even recognized in the MCM or in Army regulations. The dissent discussed the significant duties of a Chief of Military Justice in supervising of trial counsel, which includes advising on the investigation, directing which charges should be preferred, setting parameters for pretrial agreements, and mentoring counsel on trial advocacy. The dissent concluded that the Chief of Military Justice, by virtue of the prosecutorial function of the position, cannot provide an neutral advice as an SJA.

The judge advocate had “persistent involvement” throughout pretrial and post-trial processing of the case. In a footnote, the dissent added that there may be operational or deployment exigencies that make certain procedural rules “impracticable” (quoting United States v. Barry, 57 M.J. 799, 801 (A. Ct. Crim. App. 2002)). However, in this case, accused was stationed at Fort Bragg which has several General Court-Martial Convening Authorities (GCMCAs). This disqualification issue could have been avoided by transferring the case to another GCMCA for recommendations from a neutral SJA.

The CAAF granted review of the following issue: “Whether the Appellant must show prejudice to obtain relief where the convening authority received advice on clemency from a person disqualified from doing so by Article 6 UCMJ, and, if so, whether there was prejudice in this case.”

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