United States v. McCormick

34 M.J. 752, 1992 CMR LEXIS 107, 1992 WL 21722
CourtU.S. Navy-Marine Corps Court of Military Review
DecidedJanuary 31, 1992
DocketNMCM 91 0619
StatusPublished
Cited by9 cases

This text of 34 M.J. 752 (United States v. McCormick) is published on Counsel Stack Legal Research, covering U.S. Navy-Marine Corps Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. McCormick, 34 M.J. 752, 1992 CMR LEXIS 107, 1992 WL 21722 (usnmcmilrev 1992).

Opinion

MOLLISON, Judge:

Pursuant to his pleas of guilty, the appellant was found guilty of one specification of indecent acts in violation of Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934. A military judge sitting alone sentenced the appellant to be confined for a period of 18 months, to forfeit $400.00 pay per month for a period of 18 months, to be reduced to pay grade E-l, and to be discharged from the United States Marine Corps with a bad-conduct discharge. A pretrial plea-bargain agreement between the appellant and the convening authority had no impact on the adjudged sentence, and the convening authority approved the sentence as adjudged. As a matter of clemency, however, the convening authority suspended confinement in excess of 15 months. The appellant assigns one error in the post-trial processing of his court-martial.1

Before taking action on the sentence of a general court-martial the convening authority must obtain and consider the written recommendation of his staff judge advocate. Article 60(d), UCMJ, 10 U.S.C. § 860(d); Rule for Courts-Martial (R.C.M.) 1106(a), Manual for Courts-Martial, United States, 1984. No person who has acted as a trial counsel in any ease may later act as the staff judge advocate to a convening or reviewing authority in the same case. Article 6(c), UCMJ, 10 U.S.C. § 806(c); R.C.M. 1106(b). The essence of appellant’s assignment of error is that the officer who prepared the staff judge advocate’s post-trial recommendation to the convening authority was also a trial counsel in the case and was, therefore, disqualified from making such a recommendation. The appellant requests the court to reassess the sentence2 or return the record for a new staff judge advocate’s recommendation by a different [754]*754staff judge advocate and a new convening authority’s action. Since the officer about which the appellant complains did not serve as the trial counsel at the appellant’s trial, further explanation is required.

On 23 July 1990, the convening authority’s staff judge advocate, Colonel Goodrich, signed his recommendation to the convening authority. This recommendation was drafted by Captain D.A. Niesen, U.S. Marine Corps, Chief Review Officer, Legal Services Support Section (LSSS), 2d Force Service Support Group. In the recommendation it was noted the military judge had made a recommendation concerning the suspension of a portion of the adjudged confinement. Nonetheless, it was recommended the sentence be approved without suspension. The same day, trial defense counsel was served with a copy of the recommendation and afforded the required 10-day comment period. R.C.M. 1106(f). By letter dated 2 August 1990, trial defense counsel submitted his comments on the staff judge advocate’s recommendation. By endorsement dated 6 August 1990, the staff judge advocate, again Colonel Goodrich, responded to the matters raised in the defense counsel’s comments and again recommended no clemency. Because this endorsement contained “new matter,” a letter from the victim and her husband and congressional correspondence, the endorsement was served on trial defense counsel and trial defense counsel was given an additional ten days to comment on it. R.C.M. 1106(f)(7). In two letters dated 16 August 1990, trial defense counsel responded to the endorsement. Trial defense counsel specifically objected to the submission of the letter of the victim and her husband to the convening authority. Trial defense counsel further asserted that Captain Niesen had originally been assigned as prosecutor in the case; that Captain Niesen had been the point of contact for the victim’s family at the LSSS; that he counselled the victim’s family; that he escorted the victim and her family to the Naval Investigative Service in an effort to aid the investigation; that he provided his notes of interview to the successor trial counsel; that he acted as post-trial prosecutor; that he encouraged the submission of the letter by the victim; that he prepared the staff judge advocate’s recommendation; that Captain Niesen’s recommendations became the staff judge advocate’s by “a mere stroke of the pen;” and that, as prosecutor, Captain Niesen was disqualified to act as staff judged advocate. Trial defense counsel requested the review process be repeated by a new review officer who had no previous involvement in the case and that a neutral preparation of the staff judge advocate’s recommendation be performed. By letter dated 10 September 1990, a new staff judge advocate, Colonel Walls, submitted the original staff judge advocate’s recommendation of 23 July 1990 (drafted by Captain Niesen) and the three trial defense responses to the convening authority. In his letter Colonel Walls states:

Enclosure (2) is a letter from the defense counsel in which he objects to the participation of Captain Niesen, the Chief Review Officer, Legal Services Support Section, in the review process of this case. His objection is based upon Captain Niesen having drafted the proposed recommendation for the previous Staff Judge Advocate’s consideration after Captain Niesen had participated in the case as the trial counsel. However, as defense counsel correctly points out in paragraph four of his letter, Captain Niesen is not the Staff Judge Advocate in this case. His draft Staff Judge Advocate’s recommendation, prepared in his subsequent capacity as Review Officer at the Legal Services Support Section, was merely submitted for consideration by the Staff Judge Advocate. The opinions and recommendations provided to you in your role as convening authority are mine and those of my predecessor, Colonel Goodrich. The fact that Captain Niesen drafted the review for consideration by the Staff Judge Advocate is of little importance since I and my predecessor have a statutory obligation as the Staff Judge Advocate to review such cases and provide you with our opinions and recommendations. I have reviewed the record of trial, the recommendations and opinions of my predecessor, and the previous [755]*755submissions by the defense counsel; I adopt the previous Staff Judge Advocate’s submission as my own. Accordingly, the defense counsel’s complaint is without merit.

Thus, from these events we may fairly conclude: (1) Captain Niesen functioned as trial counsel at some point in time in the appellant’s case; (2) Captain Niesen was disqualified from acting as staff judge advocate to the convening authority in the appellant’s case; (3) Captain Niesen was not, at least nominally, the staff judge advocate to the convening authority; (4) Captain Niesen drafted the staff judge advocate’s post-trial recommendation to the convening authority; (5) the recommendation recommended no clemency be granted the appellant; (6) the recommendation, prepared by Captain Niesen, was adopted by two staff judge advocates as their own recommendation; (7) at least one of the staff judge advocates adopted the Niesendrafted recommendation after conducting his own independent evaluation; (8) trial defense counsel made timely objection to the participation of Captain Niesen in the review of appellant’s case; and (9) notwithstanding the staff judge advocate’s recommendations, the convening authority exercised clemency.

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Cite This Page — Counsel Stack

Bluebook (online)
34 M.J. 752, 1992 CMR LEXIS 107, 1992 WL 21722, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-mccormick-usnmcmilrev-1992.