CAAF today granted review of this 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.
United States v. Stefan, __ M.J. __, No. 10-0349/AR (C.A.A.F. May 25, 2010).
Stefan was submitted to ACCA without assignment of error and the majority affirmed in a summary disposition, available here. United States v. Stefan, No. ARMY 20081097 (A. Ct. Crim. App. Jan. 29, 2010). But Judge Ham the Great wrote a compelling and elegant nine-page dissent concluding that the SJA who prepared the addendum SJAR was disqualified and that the case satisfied the minimum prejudice hurdle required in a post-trial error context. The essence of her dissent is captured in this excerpt:
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.
Id., slip op. at 2 (footnotes omitted).
The precise issue granted, which CAAF reformulated from the issue presented in the supp, appears to assume disqualification and focus on prejudice. Here’s how Judge Ham the Great addressed the prejudice question:
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.
Id., slip op. at 10.