United States v. Taylor

IN THE CASE OF
UNITED STATES, Appellee
v.
Gary W. TAYLOR, Airman First Class (E-3)
U.S. Air Force, Appellant
No. 03-0692
Crim. App. No. 34852
United States Court of Appeals for the Armed Forces
Argued April 20, 2004
Decided August 20, 2004
GIERKE, J., delivered the opinion of the Court, in which EFFRON
and ERDMANN, JJ., joined. CRAWFORD, C.J., and BAKER, J., filed
separate dissenting opinions.
Counsel
For Appellant: Major Antony B. Kolenc (argued); Colonel Beverly
B. Knott, Major Terry L. McElyea (on brief).
For Appellee: Lieutenant Colonel Robert V. Combs (argued);
Colonel LeEllen Coacher (on brief); Major Shannon J. Kennedy.
Military Judge: G. E. Pavlick
This opinion is subject to editorial correction before final publication.
United States v. Taylor, No. 03-0692/AF
Judge GIERKE delivered the opinion of the Court.
This case concerns whether the staff judge advocate and
convening authority were disqualified from participating in the
post-trial review due to an article that the base newspaper
published about Appellant’s court-martial. During Appellant’s
sentencing hearing, the military judge suppressed adverse
personnel records due to careless mistakes in their preparation.
The trial counsel wrote an article for the base newspaper
warning commands of the consequence of shoddy personnel records.
The article suggested a negative view of Appellant and his
rehabilitative potential. The staff judge advocate noted that
the article’s views could be imputed to him and failed to
disassociate himself from the article, but nevertheless declined
to disqualify himself from Appellant’s post-trial review. That
erroneous decision requires a new recommendation prepared by a
staff judge advocate who is, and appears to be, neutral.
BACKGROUND
Appellant was tried by a general court-martial consisting
of officer and enlisted members. He entered mixed pleas. He
pleaded guilty to, and was found guilty of, violating a general
regulation by viewing sexually explicit material on a government
computer and two specifications of willful dereliction of his
duties as a hospital respiratory technician in violation of
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Article 92 of the Uniform Code of Military Justice (UCMJ).1 On
the contested charge, the members found him not guilty of two
specifications of drug distribution in violation of Article 112a
of the UCMJ.2 The members sentenced him to a bad-conduct
discharge and reduction to the lowest enlisted grade, which the
convening authority approved as adjudged. The Air Force Court
of Criminal Appeals affirmed the findings and sentence in an
unpublished opinion.3
FACTS
Appellant was tried on September 4-6, 2001, by a court-
martial convened by the Commander of Headquarters, Air Warfare
Center at Nellis Air Force Base, Nevada. During the sentencing
hearing, the military judge sustained a defense objection to an
incomplete record of individual counseling. The defense then
objected to an undated letter of counseling. Before soliciting
the trial counsel’s response, the military judge commented that
“if the squadron can’t comply with dates on when [sic] they
issue letters, honestly, the only way that gets brought to their
attention is if the judge says that kind of stuff is not
1
10 U.S.C. § 892 (2000).
2
10 U.S.C. § 112a (2000).
3
United States v. Taylor, No. ACM 34852, 2003 CCA LEXIS 170,
2003 WL 21800753 (A.F. Ct. Crim. App. July 28, 2003).
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acceptable.” The trial counsel replied, “I understand the
problem . . . . There’s not much I can argue on that one.” The
military judge then sustained the objection and added,
“[S]quadrons need to get the idea that, if this is going to
later be used for some purpose, it ought to be done correctly.”
Eight days after Appellant’s court-martial adjourned, the
trial counsel from the case — Captain Melissa Burke — published
an article in the Nellis Air Force Base’s newspaper, the
Bullseye. The article identified its author by name, indicated
that she was assigned to the “Legal Office,” and provided a
telephone number at the Military Justice Division for readers
with questions.
Captain Burke’s article began by warning that “[e]rrors in
the administration of letters of counseling, letters of
admonishment, and letters of reprimand may have devastating
effects in [sic] the proper administration of justice in a
court-martial proceeding.” Without ever naming Appellant, the
article continued, “In a recent court-martial the panel was not
given a complete picture of the member’s military service record
including numerous adverse actions spanning a period of two
years.” It explained that at a court-martial held in early
September, the military judge excluded several adverse personnel
records. After detailing the proper procedures for preparing
such documents, the article described the excluded documents’
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deficiencies. The trial counsel’s article then opined, “The
interests of justice were clearly not met in the case referenced
above.” The article elaborated, “The members were not informed
of the full measure of [the accused’s] previous Uniform Code of
Military Justice involvement. Further, they were not informed
that he was not a good candidate for rehabilitation as evidenced
by his failure to properly respond to lesser forms of corrective
measures.” The article then reiterated, “Justice was not
served.”
In a memorandum dated November 29, 2001, the defense
counsel complained to the convening authority about the article.
She wrote, “Sir, the same legal office which advises you on
military justice matters, including clemency, should not publish
an article in your newspaper which complains to the base
population that justice was not done.” The memorandum
contended, “Not only does this undermine the faith in our
military justice system, it puts you in an uncomfortable
position as a convening authority who must stay objective and
open-minded to granting clemency.”
The defense counsel prepared another memorandum, dated the
following day, seeking the staff judge advocate’s and convening
authority’s disqualification. In this memorandum, the defense
counsel argued that “[b]ecause of this article, the SJA” and his
staff “are disqualified from advising the convening authority,
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United States v. Taylor, No. 03-0692/AF
including writing the SJA recommendation.” She also wrote that
the convening authority “may be disqualified from acting on
clemency.” The defense counsel reasoned that “[a]nnouncing that
‘justice was not served’ is prejudgment on whether to grant
clemency, and no personnel from the [staff judge advocate’s]
office may make a recommendation to [the convening authority] on
clemency for A1C Taylor.”
The defense counsel also noted that the convening authority
“is the first person named as part of the Bullseye Editorial
Staff.” She argued, “If this article can in any way be imputed
to him, he is disqualified from acting as the general court-
martial convening authority in this case.”
In response, an addendum recommendation advised the
convening authority that “[t]he article can be imputed to your
Staff Judge Advocate.” The addendum recommendation also stated
that “[t]he article does not exhibit a partial or biased opinion
on the part of your Staff Judge Advocate towards clemency or
post-trial submissions on behalf of Airman Taylor.” It added,
“Further, there is absolutely no evidentiary or legal basis for
you to disqualify yourself as the Convening Authority in this
case.”
The addendum recommendation was signed by the chief of
military justice and also included the staff judge advocate’s
signature under a block reading, “I concur. I recommend you
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United States v. Taylor, No. 03-0692/AF
approve the sentence and with the exception of the bad conduct
discharge, order it executed.”
The convening authority signed an undated indorsement to
the addendum recommendation stating that “I was neither involved
in the writing of, nor has my action been influenced in any way
by the newspaper article authored by Capt Melissa Burke, imputed
to my Staff Judge Advocate, and published by the Bullseye on 14
Sep 01, entitled ‘Documentation of disciplinary action can
affect court-martial.’” On December 5, 2001, the convening
authority approved the sentence as adjudged.
The record of trial also includes an affidavit that the
convening authority executed three days after acting on the
case. The affidavit states that before the defense counsel
called the convening authority’s attention to Captain Burke’s
article, he “was unaware of the article’s existence.” He also
stated, “I played no role in the preparation or publication of
the article.”
In his affidavit, the convening authority also explained,
“I reviewed the record of trial, all defense submissions, and
staff judge advocate recommendations prior to approving the
sentence. I specifically did not allow any information in the
article brought to my attention by the defense to influence my
decision.” The convening authority also stated, “I am confident
that I would have approved the sentence without reference to the
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United States v. Taylor, No. 03-0692/AF
staff judge advocate recommendations based on my independent
review of the evidence and defense submissions.” The record
contains no similar affidavit from the staff judge advocate.
DISCUSSION
A. The Neutrality Requirement
Post-trial review is an important stage in the court-
martial process. This stage culminates in the convening
authority’s highly discretionary decision to approve, reduce, or
set aside the court-martial’s findings and sentence.4 When
making that decision, the convening authority will consider not
only any submissions by the defense,5 but also a recommendation
prepared by a staff judge advocate or legal officer.6
We have emphasized the importance of ensuring that the
convening authorities and legal advisors who carry out “those
important statutory responsibilities be, and appear to be,
objective.”7 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. We
4
See Art. 60, UCMJ, 10 U.S.C. § 860 (2000); Rule for Courts-
Martial 1107 [hereinafter R.C.M.].
5
See Art. 60(b), UCMJ; R.C.M. 1105.
6
See Art. 60(d), UCMJ; R.C.M. 1106 (requiring staff judge
advocate’s or legal officer’s recommendations in all general
court-martial cases and special court-martial cases resulting in
a bad-conduct discharge or confinement for one year).
7
United States v. Dresen, 47 M.J. 122, 124 (C.A.A.F. 1997).
8
United States v. Taylor, No. 03-0692/AF
recognized the first interest when we noted that a
recommendation prepared by “a biased legal officer [or staff
judge advocate] could unfairly prejudice the convening
authority’s decision.”8 The Navy-Marine Corps Court recognized
the second interest when it emphasized that “[t]he appearance of
evil created when a staff judge advocate’s recommendation is
drafted by disqualified persons is to be avoided.”9
Concern for both fairness and integrity suggests that these
neutral roles cannot be filled by someone who has publicly
expressed a view prejudging the post-trial review process’s
outcome. So, for example, we have held that a convening
authority was disqualified from taking post-trial action in a
cocaine and marijuana use case because of briefings during which
he reportedly commented that people convicted of using drugs
“should not come crying to him about their situations or their
families[’].”10 These remarks required the convening authority’s
disqualification because they “reflect an inflexible attitude
toward the proper fulfillment of post-trial responsibilities in
8
United States v. Rice, 33 M.J. 451, 453 (C.M.A. 1991).
9
United States v. McCormick, 34 M.J. 752, 755 (N-M.C.M.R. 1992)
(citing United States v. Jolliff, 22 C.M.A. 95, 46 C.M.R. 95(1973)).
10
United States v. Davis, 58 M.J. 100, 103 (C.A.A.F. 2003).
9
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cases involving convictions for wrongful use of controlled
substances.”11
Whether a staff judge advocate or convening authority is
disqualified from participating in the post-trial review is a
question of law that we review de novo. As we conduct our
analysis, the defense “has the initial burden of making a prima
facie case” for disqualification.12
B. The Convening Authority
The convening authority was not disqualified. When the
defense counsel challenged the convening authority’s involvement
in the post-trial process, she wrote, “If this article can in
any way be imputed to him, he is disqualified from acting as the
general court-martial convening authority in this case.” But
the record establishes that the article cannot be imputed to the
convening authority.
The defense counsel argued that because the convening
authority was the first person listed in the Bullseye’s
masthead, he must have known of and approved Captain Burke’s
article before it was published. Not so. In an uncontradicted
affidavit, the convening authority has sworn that before the
defense counsel’s submission, “I was unaware of the article’s
11
Id.12
United States v. Wansley, 46 M.J. 335, 337 (C.A.A.F. 1997).
10
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existence. I played no role in the preparation or publication
of the article.” This disproves the very premise on which the
defense’s challenge to the convening authority was based.
Accordingly, the defense has not carried its burden of
establishing a prima facie case that the convening authority was
disqualified from executing his post-trial duties.
C. The Staff Judge Advocate
In stark contrast to the convening authority’s disavowal of
any previous knowledge of Captain Burke’s article, the staff
judge advocate acknowledged that the article may be imputed to
him. The addendum staff judge advocate’s recommendation — a
document bearing the staff judge advocate’s signature and
express concurrence — states, “The article can be imputed to
your Staff Judge Advocate.” The convening authority’s
indorsement to this addendum recommendation similarly refers to
“the newspaper article authored by Capt Melissa Burke, imputed
to my Staff Judge Advocate, and published by the Bullseye on 14
Sep 01.”
The staff judge advocate could have disclaimed the article
and participated in the post-trial review.13 He did not.
Rather, in what might have been a laudable exercise in candor,
13
See id. at 337 (holding that trial counsel’s statements in a
post-trial article would not be imputed to the staff judge
advocate, who expressly stated that the remarks were not made on
his or the convening authority’s behalf).
11
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he wrote that the article could be imputed to him. But the
consequence of that concession is that he could not perform the
duties entrusted to a neutral staff judge advocate.
The article expressly stated that the unnamed accused “was
not a good candidate for rehabilitation.” Any reasonable
observer who was familiar with the facts would understand that
the unnamed accused was, in fact, Appellant. By agreeing that
the article including this characterization could be imputed to
him, the staff judge advocate created the impression that he had
prejudged the appropriateness of clemency in this case. A
reasonable observer would no longer feel confident that the
staff judge advocate remained neutral when he advised the
convening authority concerning Appellant’s clemency request.
Accordingly, the staff judge advocate’s failure to disqualify
himself was error.
D. Remedy
A disqualified staff judge advocate’s participation in the
post-trial review process is a serious deficiency. As we have
frequently observed, “a military accused’s ‘best hope for
sentence relief from a court-martial judgment comes in the
convening authority’s action.’”14 The staff judge advocate’s
recommendation “plays a pivotal role in an accused’s chances for
14
United States v. Edwards, 45 M.J. 114, 116 (C.A.A.F. 1996)
(quoting United States v. Bono, 26 M.J. 240, 243 n.3 (C.M.A.
1988)).
12
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relief. Thus, [the staff judge advocate’s] disqualification in
preparing this recommendation cannot be said to be a technical
matter without impact on the outcome of these proceedings.”15
Granting relief in this case is particularly appropriate
because the trial defense counsel identified the problem and
urged disqualification as a remedy. The staff judge advocate
had an opportunity to avoid the issue, but chose not to.
As we have observed, “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.”16
Accordingly, where post-trial errors occur, we will order a
new review if the defense makes “some colorable showing of
possible prejudice.”17 Appellant has satisfied this low standard
for obtaining a new post-trial review.
The defense counsel submitted a combined response to the
staff judge advocate’s recommendation and clemency request that
went well beyond a plea for a reduced sentence. The defense
submission asked the convening authority to set aside the
15
Id. (citation omitted).
16
United States v. Lowe, 58 M.J. 261, 263 (C.A.A.F. 2003).
17
United States v. Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998).
13
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findings and sentence on the grounds that Appellant had been
treated unfairly in the court-martial process.
The defense submission contended that the case should never
have been referred to a general court-martial. According to the
defense counsel, specific items portrayed as facts in the staff
judge advocate’s Article 3418 pretrial advice letter allegedly
contained false or exaggerated information on matters that were
neither minor nor inconsequential. Based on this analysis, the
defense claimed that the staff judge advocate’s Article 34
advice overstated the seriousness of Appellant’s offenses. The
defense counsel also stated that she had not been provided with
a copy of the Article 34 advice letter, in violation of R.C.M.
406(c), so she had been unable to make a timely comment to
challenge the letter’s accuracy.
The defense submission also observed that Appellant was
found not guilty of the two ecstasy distribution charges he
faced at the general court-martial. The defense argued that
Appellant’s actual misconduct, setting aside the unsubstantiated
distribution charges, warranted nonjudicial punishment rather
than a general court-martial.
The defense’s post-trial submission also argued that two
errors occurred at trial. The first involved a defense
18
10 U.S.C. § 834 (2000).
14
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objection to the introduction of the pictures that Appellant had
viewed. The defense objected under Military Rule of Evidence
403 that the evidence was more prejudicial than probative, and
the military judge overruled the objection without articulating
an analysis under the required balancing test. The defense
submission also contended that a portion of the trial counsel’s
sentencing argument stating that Appellant “should not be
allowed to remain in the Air Force” was impermissible under
United States v. Motsinger.19 The defense counsel acknowledged
that she had not objected to the argument, which raised the
possibility of waiver. But she noted that the convening
authority retained “the power to cure” the alleged error.
The defense counsel’s post-trial submission included
challenges to the fairness of the pretrial processing of
Appellant’s case, as well as of the sentencing hearing. These
challenges required a fair and objective analysis by the staff
judge advocate before the convening authority acted. Because
the defense submission included allegations of legal error, the
staff judge advocate’s advice to the convening authority was
particularly important.
Appellant was entitled to a post-trial action by a
convening authority who had been advised by a properly-qualified
staff judge advocate. In this case, that advice was instead
19
34 M.J. 255 (C.M.A. 1992).
15
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given by a staff judge advocate who should have been
disqualified from acting. In light of the issues included in
the defense’s post-trial submission, the lack of advice from a
properly-qualified staff judge advocate constitutes a “colorable
showing of prejudice,” warranting a new post-trial review and
action.
In opposing remand for a new post-trial review, the
Government points to the convening authority’s affidavit in
which he stated, “I am confident that I would have approved the
sentence without reference to the staff judge advocate
recommendations based on my independent review of the evidence
and defense submissions.” But at oral argument, the Government
conceded that we cannot “postulate what [the convening
authority] might have done” if the staff judge advocate had
recommended clemency. It would be particularly difficult to
predict what the convening authority would have done had the
staff judge advocate advised him that one of the defense’s
allegations of legal error was meritorious. So the convening
authority’s affidavit does not erase the defense’s colorable
showing of prejudice.
We do not mean to imply any view about what a neutral staff
judge advocate should have recommended or how the convening
authority should have acted. It is the convening authority’s
“statutory duty, not ours, to consider what action is
16
United States v. Taylor, No. 03-0692/AF
appropriate in the circumstances.”20 Our statutory duty is to
determine whether “the law is adhered to, established procedures
are followed, and staff judge advocates do their jobs.”21 In
this case, the staff judge advocate did not do his job correctly
when he declined to disqualify himself. Remanding the case for
a new convening authority’s action will ensure that Appellant is
not prejudiced by that failure. It will also ensure that,
regardless of the new action’s outcome, the military justice
system’s integrity will be protected from a disqualified
individual influencing the outcome of Appellant’s post-trial
review.
DECISION
We reverse the decision of the United States Air Force
Court of Criminal Appeals and set aside the convening
authority’s action. We return the record to the Judge Advocate
General of the Air Force for a new post-trial review, including
a recommendation by a staff judge advocate who is not
disqualified.
20
United States v. Lee, 50 M.J. 296, 298 (C.A.A.F. 1999).
21
United States v. Johnston, 51 M.J. 227, 229 (C.A.A.F. 1999).
17
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CRAWFORD, Chief Judge (dissenting):
Even assuming Captain Burke’s newspaper article should have
disqualified the staff judge advocate and convening authority, I
would conclude that any error in this case was harmless.
Pursuant to his pleas, Appellant was convicted of
wrongfully using a government computer to access the Internet
and display pornography and sexually explicit material.
Appellant also pleaded guilty to dereliction of his duties as a
hospital respiratory technician on two occasions. On the first
occasion, February 19, 2000, Appellant failed to give the
appropriate medication to his patients to allow them to breathe.
On the second occasion, February 23, 2000, Appellant placed a
tight-fitting mask over a patient’s mouth and nose to assist the
patient’s breathing, but failed to verify the presence of
supplemental oxygen. In less than five minutes, an alarm went
off indicating the patient’s oxygen had fallen below 90%.
Letters of counseling excluded from evidence showed that
Appellant had also improperly performed his duties as a hospital
technician in April and June 1999, and had previously received
nonjudicial punishment for three assaults, drunk and disorderly
conduct, and communicating a threat.
Based on the information contained in the record, including
the serious offenses described above, it is extremely unlikely
that a new staff judge advocate or convening authority would
United States v. Taylor, No. 03-0692/AF
have granted Appellant any relief. For these reasons, I
conclude that any error in failing to disqualify the staff judge
advocate and convening authority was harmless.
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BAKER, Judge (dissenting):
I agree with the majority's conclusion that the staff
judge advocate's failure to disqualify himself was error.
"A disqualified staff judge advocate's participation in the
post-trial review process is a serious deficiency." ___
M.J. (13). I also agree with the framework used by the
majority to assess prejudice. "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." ____ M.J. (13). Additionally, I agree
with the majority's consideration of legal policy.
"Granting relief in this case is particularly appropriate
because the trial defense counsel identified the problem
and urged disqualification as a remedy. The staff judge
advocate had an opportunity to avoid the issue, but chose
not to." ____ M.J. (13).
However, I respectfully dissent from the result
reached by the majority. I do not believe there is any
possibility, other than that found in the logic that we
cannot ultimately know how someone might have acted had
events been different, that Appellant would have received
clemency from the convening authority on his sentence in
light of the offenses Appellant stipulated that he
United States v. Taylor, No. 03-0692/AF
committed. Appellant pleaded and was found guilty of
violating a general regulation by viewing pornography on a
government computer while on duty. He also pleaded guilty
to, and was convicted of, willful dereliction of his duties
as a hospital respiratory technician for neglecting
patients while he viewed pornography, and for falsely
annotating the medical charts of respiratory care patients.
According to the stipulation of fact, Appellant was
responsible for giving nebulizer treatments to patients and
annotating the treatments on their charts to include "time,
breath sounds, pulse rate, duration and tolerance of the
treatment, peak flow, oxygen saturation and cough."
"During these treatments, the patients inhale medication
which makes it easier for them to breathe." On February
19, Appellant gave nebulizer treatments to three patients
at approximately 1200. At this same time, Appellant
falsely annotated the patient's charts to show that he had
given nebulizer treatments to the three patients at 1600 as
well. The stipulation of fact indicates that Appellant's
actions were discovered by a nurse at 1500. For these
actions, Appellant received a bad conduct discharge,
reduction to E-1, and no confinement.
Of course, we cannot ultimately know if a another
staff judge advocate’s recommendation would have led to a
2
United States v. Taylor, No. 03-0692/AF
different clemency result, but we do know the stipulated
facts and circumstances of Appellant's offenses, including
Appellant's neglect of his patients and his viewing of
pornography on duty, at work. The convening authority
swore in an affidavit, "I am confident that I would have
approved the sentence without reference to the staff judge
advocate recommendations based on my independent review of
the evidence and defense submissions." Thus, this is not a
case where Appellant did not have an opportunity to make
his case or where the convening authority was acting alone
pursuant to contested facts or an erroneous statement of
the offenses. Finally, with the exception of Appellant's
assertion of certain legal errors identified to the
convening authority, Appellant did not present as part of
his clemency package factors typically suggestive of
possible clemency such as a stellar record, honorable
combat service, remorse, or dependent obligations and
needs.
As a result, although the staff judge advocate’s error
in this case was evident, based on this record I do not
believe there was any actual possibility of a different
outcome during the convening authority’s review.
Therefore, the error in question was harmless. For this
3
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reason, I respectfully dissent from the result reached by
the majority.
4