STEFAN ( ARMY 20081097

**UNITED STATES ARMY COURT OF CRIMINAL APPEALS**

Before

TOZZI, HAM, and SIMS

Appellate Military Judges

**UNITED STATES, Appellee**

**v.**

**Private E1 DUSTIN A. STEFAN**

**United States Army, Appellant**

ARMY 20081097

Headquarters, 82d Airborne Division

Gary J. Brockington, Military Judge

Lieutenant Colonel Gregg A. Engler, Acting Staff Judge Advocate (pretrial)

Major Nelson J. Van Eck, Acting Staff Judge Advocate (recommendation)

Major Kaiesha N. Wright, Acting Staff Judge Advocate (addendum) 

For Appellant:  Major Timothy W. Thomas, JA; Captain Jess B. Roberts, JA. 

For Appellee:  Pursuant to A.C.C.A. Rule 15.2, no response filed.

29 January 2010

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SUMMARY DISPOSITION

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SIMS, Judge:

On consideration of the entire record, including consideration of the issues personally specified by appellant, we hold the findings of guilty and the sentence as approved by the convening authority correct in law and fact.  Accordingly, those findings of guilty and the sentence are AFFIRMED.

Chief Judge TOZZI concurs.

HAM, Judge, dissenting:

I dissent from my brethren’s summary affirmance and would return this case for a new post-trial review and action.  In my view, a disqualified officer served as staff judge advocate (SJA) and advised the convening authority during the post-trial process.  

A military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of failing to go to his appointed place of duty (two specifications), willfully disobeying a noncommissioned officer, failing to obey a lawful order, willfully damaging military property, wrongful possession of marijuana, larceny (seven specifications), and burglary, in violation of Articles 86, 91, 92, 108, 112a,  121, and 129, Uniform Code of Military Justice, 10 U.S.C. §§ 886, 891, 892, 908, 912a, 921, and 929 [hereinafter UCMJ].  The military judge sentenced appellant to a dishonorable discharge, confinement for twenty-two months, and total forfeiture of all pay and allowances.  Pursuant to a pretrial agreement, the convening authority approved only so much of the adjudged sentence as provided for confinement for eighteen months, and otherwise approved the adjudged sentence.  The convening authority ordered appellant credited with 109 days of confinement credit against the sentence to confinement.  Appellant submitted the case for our review on its merits.

**BACKGROUND**

MAJ Wright wore numerous hats throughout this case.  Appearing first in the record of trial on 9 October 2008, as “Chief, Military Justice,” MAJ Wright signed the referral of both the charges and additional charges.  Next, MAJ Wright appeared on 14 October 2008, as “Trial Counsel,” and served the referred charges and additional charges on appellant.  Third, on 6 May 2009, MAJ Wright, acting again as “Chief, Military Justice,” granted trial defense counsel’s request for an extension of time to submit post-trial matters.  On 2 June 2009, MAJ Wright signed the promulgating order and the Chronology Sheet, DD Form 490 as “Acting Staff Judge Advocate.”  Again on 2 June 2009, MAJ Wright signed the Court-Martial Data Sheet, DD Form 494, as “Trial Counsel,” “Convening Authority or His/Her Representative,” and “Staff Judge Advocate of General Court-Martial Convening Authority or Reviewing Judge Advocate.”  

Most importantly, on 2 June 2009, MAJ Wright served as the acting SJA in this case, and signed the addendum to the Staff Judge Advocate’s Recommendation (SJAR), wherein MAJ Wright opined that she had “considered [the defense post-trial submissions] and in [her] opinion, clemency is not warranted.”  I believe MAJ Wright wore too many hats in this case, and was disqualified from rendering advice to the convening authority. 

**LAW**

“[T]he convening authority is an accused’s last best hope for clemency.”  *United States v. Hamilton*, 47 M.J. 32, 35 (C.A.A.F. 1997) (citing*United States v. Cook*, 46 M.J. 37, 39 (C.A.A.F. 1997)).  “Clemency is the heart of the convening authority’s responsibility at that stage of the case,” *id.,*and is “[o]ne of the distinguishing features of the military justice system.” *United States v. Finster*, 51 M.J. 185, 186 (C.A.A.F. 1999) (reviewing history of commander’s clemency power).   The commander’s power to modify the findings and/or sentence for the benefit of the soldier is “based on the responsibility of a military commander for the state of discipline and justice in the command.” *Id*.  

Prior to acting on the record of any general court-martial or special court-martial the sentence in which includes a bad-conduct discharge or confinement for one year, the convening authority must obtain the recommendation of his SJA or legal officer.  R.C.M. 1106)(a).  *See* Article 60(d), UCMJ.   

Because of the significance of the convening authority’s action in the military justice system, the recommendation of the staff judge advocate . . . is enormously important. . . [It is] much more than a ministerial action or mechanical recitation of facts concerning the trial.  Its heart and soul exist in the judgment of the drafter as to whether the adjudged sentence is appropriate and whether clemency is warranted.  

*Finster*, 51 M.J. at 187 (quoting*United States v. Cunningham*, 44 M.J. 758, 763 (N.M. Ct. Crim. App. 1996)).  *See also Edwards*, 45 M.J. at 116 (stating that, due to the SJA’s advisory function under Article 60(d) and R.C.M. 1106, “he plays a pivotal role in an accused’s chances for relief”) (citing *United States v. Curry*, 28 M.J. 419 (C.M.A. 1989)).  

“Congress underscored the critical role of the SJA in the post-trial process by establishing criteria that disqualify a person from acting as an SJA in designated situations.” *Finster*, 51 M.J. at 186.  

No person who has acted as a 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.

Article 6(c), UCMJ. *See* R.C.M. 1106(b).  The purpose of this provision is to “assure the accused a thoroughly fair and impartial review.”  *United States v. Coulter*, 3 U.S.C.M.A. 657, 659, 14 C.M.R. 75, 77 (1954).  This prohibition extends beyond signing the post-trial documents and personally advising the convening authority—a disqualified officer may not even *prepare* the post-trial documents recommending a course of action in a case.  *Johnson-Saunders*, 48 M.J. at 75 (holding that new review and action were required where trial counsel, in her capacity as “Acting Chief, Military Justice,” drafted the SJAR).  *See also United States v. Spears*, 48 M.J. 768, 775 (A.F. Ct. Crim. App. 1998) (error for trial counsel to prepare and sign a staff summary sheet containing a recommendation; Article 6(c) establishes “a rule of basic fairness which prevents a trial counsel from preparing any legal review for, or making any recommendation to, the convening authority at any stage of the post-trial process”); *United States v. McCormick*, 34 M.J. 752, 755 (N.M.C.M.R. 1992) (returning case for new review and action where trial counsel drafted SJAR, despite fact that it was subsequently “filtered through two [SJAs]”).   Accordingly, disqualification “cannot be said to be a technical matter without impact on the outcome of [the] proceedings.”  *Edwards*, 45 M.J. at 116.  Rather, a “disqualified [officer’s] participation in the post-trial review process is a serious deficiency.”  *United States v. Taylor*, 60 M.J. 190, 194 (C.A.A.F. 2004).

 In addition to any statutory disqualification, we also consider whether a “disinterested observer [would] doubt the fairness of the post-trial proceedings.”  *Johnson-Saunders*, 48 M.J. at 75, or whether a “reasonable observer would no longer feel confident that [a non-statutorily disqualified officer] remained neutral when he advised the convening authority concerning [a]ppellant’s clemency request.”  *Taylor*, 60 M.J. at 194.  Applying these principles, our superior court has stated that a non-statutorily disqualified officer can properly advise the convening authority post-trial despite providing “general advice” to the trial counsel or investigating officers.  *See United States v. Willis*, 46 C.M.R. 112, 114 (C.M.A. 1973).  When, however, one “move[s] from the role of advis[o]r to the role of participant . . . he [or she] is disqualified from later performing any inconsistent function.”  *Id*.  *See United States v. Gutierrez*, 57 M.J. 148, 149-50 (C.A.A.F. 2002) (finding chief of military justice disqualified from acting as SJA in post-trial process where she “actively participated in the preparation of the case against appellant,” and “crossed the line from advisor to active participant when she actively participated in a prosecutorial capacity to orchestrate the timing of the [pretrial] investigation to force the defense to assume responsibility for the delay”).  *See also generally United States v. Barry*, 57 M.J. 799 (Army Ct. Crim. App. 2002) (returning case for new action due to combined effect of irregularities, noting that convening authority believed the chief of military justice was disqualified from participating as SJA in the post-trial process “because of her active involvement in the prosecution thereof,” including coordinating personal jurisdiction over appellant and appearing as government representative at pretrial confinement hearing) (citations omitted).      

The main concern underlying disqualification, statutory or otherwise, is that the officer providing the recommendation “must be neutral.  The recommendation of a biased  . . . officer could unfairly prejudice the convening authority’s decisions.”  *United States v. Rice*, 33 M.J. 451, 453 (C.M.A. 1991).  *See also Taylor*, 60 M.J. at 193 (stating that both convening authorities and staff judge advocates “who carry out ‘those important [post-trial] statutory responsibilities be, and appear to be, objective”) (quoting *United States v. Dresen*, 47 M.J. 122, 124 (C.A.A.F. 1997)).  “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.”  *Id*.   

**DISCUSSION**

Preliminarily, MAJ Wright was statutorily disqualified from advising the convening authority on the case because she served the referred charges on the accused in her capacity as the trial counsel in the same case.  R.C.M. 602 (The “trial counsel detailed to the court-martial to which charges have been referred for trial shall cause to be served upon each accused a copy of the charge sheet.”)  

Even in the absence of MAJ Wright’s admittedly limited and largely administrative role as trial counsel, she acted throughout the case as the “Chief, Military Justice” until her turn as acting SJA during the post-trial phase.  In my view, the chief of military justice in today’s Army cannot fill the neutral role required in the post-trial process and is disqualified from advising the convening authority. 

The term “chief of military justice,” or “chief of criminal law,” is not recognized or defined by the UCMJ or the Manual for Courts-Martial. *See* R.C.M. 103 (Definitions and Rules of Construction), 501 (Composition and personnel of courts-martial), 502 (Qualifications and duties of personnel of courts-martial).  *See also* Article 27, UCMJ (Detail of trial counsel and defense counsel).  The terms are also not defined by the Army’s primary military justice regulation or other regulations setting forth doctrine in the Army’s Judge Advocate General’s Corps.  *See*AR 27-10, Army Reg. 27-1, Legal Services:  Judge Advocate Legal Services (30 September 1996).  Because the position is not one established or recognized by the Manual for Courts-Martial, it is not surprising that it is not included in the disqualification provisions contained in the UCMJ or the Rules for Courts-Martial.  

The lack of formal definition of terms or regulatory detailing of the duties of the chief of military justice should not, however, blind us as senior Army judge advocates to either reality or common sense.  We are acutely aware of the nature of the chief of military justice’s duties in today’s Army.  While the SJA remains “above the fray,” in order to be able to provide neutral advice to the convening authority, in contrast, the chief of military justice is—and should be—directly “in the fray.”  Even when not appearing on behalf of the government at trial, the chief of military justice is behind the scenes pulling the prosecutorial strings.  The chief of military justice is directly involved—*in a prosecutorial capacity*—in all aspects of general and special courts-martial (and many other lesser actions) that take place within the general court-martial jurisdiction.  He or she is in reality the chief prosecutor for the installation or general court-martial jurisdiction, a de facto member of the prosecution team.  *Cf. Sorrell*, 47 M.J. at 433-34 (declining to answer contention that chief of military justice is disqualified from providing post-trial advice “because he was a member of the prosecution team,” finding any error “harmless under the specific circumstances of this case”).  *Accord Hamilton*, 47 M.J. 32, 34 (declining to decide whether term “trial counsel” in Article 6(c), UCMJ and R.C.M. 1106(b) “extends beyond the person who prosecutes in the name of the United States in the courtroom and includes all persons who act on behalf of the United States prior to trial,” and thus whether chief of military justice was disqualified because actions “did not materially prejudice the substantial rights of appellant”).    

The chief of military justice’s hands are on every general and special court-martial that takes place within a general court-martial jurisdiction.  He performs much more than a training and advisory role, however, and is certainly more than a “paper-pusher,” or one who acts merely in an administrative capacity.  The chief of military justice’s duties in every case under his supervision include, but are not limited to: 

(1)  coordinating with trial counsel and investigative agents to shape the investigation; 

(2)  serving as the primary point of contact for civilian law enforcement and prosecutorial officials in the surrounding community for all military justice matters, including which entity will undertake prosecution for an offense occurring in areas of shared jurisdiction;

(3)  advising, working with, and directing trial counsel which soldiers to seek the commander’s order to confine or otherwise restrain prior to trial; 

(4)  directing and recommending which charges should be preferred, reviewing and editing charges prior to preferral;

(5)  tracking the speedy trial clock, ensuring appropriate authorities act on requested delays, and, in particular documenting defense delays and ensuring as much delay as possible is borne by the defense and not the prosecution;

(6)  reviewing the evidence, and deciding whether further investigation is necessary prior to referral; 

(7)  setting the parameters of pretrial negotiations and terms likely acceptable to the convening authority, as well as office policies concerning pretrial negotiations and those with authority to engage in them; 

(8)  discussing and directing discovery, witness production, and trial strategy and tactics; 

(9)  directing and mentoring trial counsel on how to best advocate the government’s position in court, including practicing opening and closing statements and sentencing arguments, as well as shaping direct and cross-examinations of witnesses;

(10)  sitting in the courtroom discussing events at trial as they occur regardless of whether the chief of military justice is acting in court as the trial or assistant trial counsel, including passing notes to the trial counsel in real time; 

(11)  attending R.C.M. 802 conferences and post-trial “bridge-the-gap” sessions with the military judge and trial counsel; and conducting after action reviews of trial performance and results.  

In addition, no action in any general or special court-martial gets to the general court-martial convening authority (GCMCA) without the stamp of approval of the chief of military justice—in many instances, the action is initiated, directed, or shaped by him.  Simply stated, the modern chief of military justice in the Army is in no way, shape, or form—not in concept or execution—“neutral,” and has no business advising the convening authority in the post-trial process.  The reality is that the chief of military justice is an “active participant” in every general and special court-martial not as neutral arbiter or one who merely provides general advice, but as a*prosecutor*.  Any disinterested observer would rightly have serious doubts about the fairness of any post-trial process that allowed the unit’s chief prosecutor to provide such critical advice. *See**Johnson-Saunders*, 48 M.J. at 75.  *See also Sorrell*, 47 M.J. at 434 (Sullivan, J., concurring in part and in the result and dissenting in part) (“Our clemency process is too important a step in our military justice system to have even the hint of anything irregular as part of the process.”).  

MAJ Wright’s persistent involvement in this case is evident in documents as the case progressed through court-martial to action.  On one day, MAJ Wright signed the referral on the back of the charge sheet and additional charge sheet; a few days later, MAJ Wright served the accused the referred charges and additional charges as trial counsel; after trial, MAJ Wright granted a defense counsel’s request for additional time to file post-trial matters, a function she is not authorized to perform.  Later still, MAJ Wright summarized appellant’s clemency submission to the convening authority, and, in the last word prior to the convening authority’s decision, advised him that “in [her] opinion, clemency is not warranted.”  The GCMCA agreed, and granted none.  That same day, MAJ Wright signed additional documents as “trial counsel.”  

Although documents in the record of trial and allied papers in this case reflect some of the chief of military justice’s involvement, we should not normally expect to see visible evidence of the integral role he plays in this or any other case either through testimony or documents.  That does not mean it is absent.  If the chief is doing his job—and we must presume in absence of evidence to the contrary that he is—his active involvement on the prosecution side goes far, far beyond providing “general advice” to the trial counsel.  Rather, it is woven into the fabric of the case from start to finish.  Accordingly, the chief of military justice should have nothing to do with advising the convening authority after trial concerning whether the convening authority should exercise his discretion to grant or deny clemency, a critical and unique feature of the military justice system.

In addition to finding that a disqualified official advised the convening authority in this case, I would also find appellant has met the low standard for demonstrating prejudice in the post-trial context.  *United States v. Wheelus*, 49 M.J. 283, 289 (C.A.A.F. 1998).  *See also Taylor*, 60 M.J. at 195.  Appellant’s clemency submission focused on attempting to secure approval of a bad-conduct discharge, rather than the adjudged more severe dishonorable discharge.  In fact, trial defense counsel’s post-trial submission states that appellant forbade him from requesting that the convening authority grant clemency by reducing appellant’s confinement.  In light of the highly discretionary nature of the convening authority’s clemency decision, I cannot conclude that a disqualified official’s participation is harmless*.  Id.*  (“By definition, assessments of prejudice during the clemency process are inherently speculative.  Prejudice, in a case involving clemency, can only address possibilities in the context of an inherently discretionary act.”) (citation omitted).  This case demands at least a new addendum and action by an officer “not affiliated with the prosecution who can consider this case in an impartial manner.”  *Edwards*, 45 M.J. at 117 (citations omitted).  “[R]egardless of the new action’s outcome, the military justice system’s integrity will be protected from a disqualified individual influencing the outcome of [a]ppellant’s post-trial review.”  *Taylor*, 60 M.J. at 196.

For these reasons, I dissent.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court 

� Only the convening authority or the SJA may, for good cause, grant an extension to submit post-trial matters; “only the convening authority may deny a request for such an extension.”  Rule for Courts-Martial [hereinafter R.C.M.] 1105(c)(1). 

� Because the document at issue is the addendum to the SJAR, the defense counsel 

(continued . . .)

(. . . continued)

had no opportunity to object to MAJ Wright’s involvement in the post-trial process.  As a result, waiver does not apply.  See United States v. Holt, 38 M.J. 682, 683 (A.F.C.M.R. 1993).  Cf. United States v. Edwards, 45 M.J. 114, 116 (C.A.A.F. 1996) (finding waiver to disqualified officer’s involvement with SJAR “not appropriate where defense counsel was not fully aware of the circumstances of disqualification”) (citations omitted).  Even where an accused has an opportunity to object, our superior court has found that failure to do so does not result in waiver.  United States v. Johnson-Saunders, 48 M.J. 74, 75 (C.A.A.F. 1998).  �  

� This statement applies with equal vigor to the addendum to the SJAR, the document at issue here.  Further, following the latest amendments to R.C.M. 1106, 

(continued . . .)

(. . . continued)

the “heart and soul” are essentially all that remain of the greatly truncated SJAR.  See Exec. Order No. 13468, 73 Fed. Reg. 43831 (July 28, 2008).  See also generally Finster, 51 M.J. at 186-87 (recounting history of the SJAR through changes implemented by Military Justice Act of 1983, Pub. L. 98-209, 97 Stat 1396-97).

� An SJA is also disqualified if he has “other than an official interest” in the case, meaning “a personal interest or feeling in the outcome of a particular case.”  United States v. Sorrell, 47 M.J. 432, 433 (C.A.A.F. 1998).  

� The McCormick court stated further that it “doubt[ed] that any public confidence in the integrity and impartiality of a process could be garnered when that process affords disqualified persons an ‘inside track’ for advancing their views and then purports to cloak those views with the mantle of impartiality.”  Id. at 755-56.

� AR 27-10 briefly discusses one of the functions of the chief of military justice, who, along with the SJA, serves as the primary supervisor and trainer of trial counsel.  This partial description of the chief of military justice’s duties is contained in the portion of the regulation that describes the Trial Counsel Assistance Program (TCAP), and sets forth the interrelationship and interaction of the chief’s role as trainer with TCAP’s mission, which is to “provide assistance, resources, and support for the prosecution function throughout the Army and to serve as a source of resolution of problems encountered by trial counsel,” but does not define the term or further describe the chief of military justice’s other duties.  AR 27-10, para. 22-2.

� Since the organization of the Army into modular force brigade combat teams (BCT), a trial counsel is assigned to every BCT.  However, while in garrison, the trial counsel “work[s] at the Office of the Staff Judge Advocate (OSJA) military justice section . . . the [trial counsel’s] primary duty location while in garrison is the OSJA military justice section.”  Policy Memorandum from the Judge Advocate General to Judge Advocate legal Services Personnel, Subject:  Location, Supervision, Evaluation, and Assignment of Judge Advocates in Modular Force Brigade Combat Teams – Policy Memorandum 08-1 (17 April 2008), para. 3.  Further, the trial counsel is “supervised by the OSJA chief of military justice during garrison operations.”  Id. at para 4.  The chief of military justice also normally serves as the trial counsel’s rater, apart from those trial counsel assigned to a BCT, where the Brigade Judge Advocate fills that role. 

� Compare United States v. Grimm, 6 M.J. 890, 893-94 (A.C.M.R. 1979), where the court described the duties of the chief of criminal law as “administrative in nature    . . . monitoring pretrial and post-trial processing with a view to speedy and just 

disposition.”  In Grimm, the court found that chief of criminal law, as the position was primarily known at the time (and which some offices still call it) was 

“the alter ego of the [SJA] in the field of criminal law . . . not a prosecutorial 

(continued . . .)

(. . . continued)

function . . . .”  Id.  See also United States v. Marsh, 21 M.J. 445, 448 (C.M.A. 1986) (then existing Dep’t of Army Pam. 27-5, Staff Judge Advocate Handbook (1963) did not “indicate that the chief of military justice is intended to be a chief prosecutor or to perform prosecutorial duties”).

� This court has previously recognized that “operational requirements and deployments” may make the Rules for Courts-Martial and the UCMJ “impracticable, or very difficult to satisfy, in some situations.”  Barry, 57 M.J. at 801.  Like some other installations, Fort Bragg is the home of a number of GCMCAs.  One practical solution when one GCMCA deploys is to request that another GCMCA remaining on post accept transfer of those cases remaining, both pre and post-trial.  See R.C.M. 1107. 

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