                              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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United States v. Taylor, No. 03-0692/AF


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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United States v. Taylor, No. 03-0692/AF


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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United States v. Taylor, No. 03-0692/AF


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,



                                      5
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
United States v. Taylor, No. 03-0692/AF


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
United States v. Taylor, No. 03-0692/AF


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
United States v. Taylor, No. 03-0692/AF


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
United States v. Taylor, No. 03-0692/AF


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
United States v. Taylor, No. 03-0692/AF


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
United States v. Taylor, No. 03-0692/AF


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
United States v. Taylor, No. 03-0692/AF


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
United States v. Taylor, No. 03-0692/AF


     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.




                                2
United States v. Taylor, No. 03-0692/AF


     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
United States v. Taylor, No. 03-0692/AF


reason, I respectfully dissent from the result reached by

the majority.




                             4
