## Facts

- Charges under the UCMJ were preferred against Sergeant Major of the Army Gene C. McKinney.
- Colonel Owen C. Powell, Jr. preferred the charges and also served as both the summary- and special-court-martial convening authority for the matter.
- Powell appointed Colonel Robert L. Jarvis as the Article 32 investigating officer.
- Powell instructed Jarvis to prohibit spectators from attending the Article 32 investigation, and Jarvis scheduled the hearing consistent with that instruction.
- McKinney asked, among other requests, that the Article 32 hearing be open to spectators; Powell denied the request.
- McKinney then requested that Powell recuse himself as special-court-martial convening authority, arguing Powell was an “accuser” and therefore disqualified from acting further as convening authority.
- Powell denied the recusal request.
- McKinney petitioned the United States Army Court of Criminal Appeals for extraordinary relief in the nature of a writ of prohibition to disqualify Powell from further action in the case.
- In response to the petition, Powell submitted an affidavit stating that he had no personal interest in the outcome of the case and that his actions were taken in an official capacity.

## Issues

1. Whether the Army Court of Criminal Appeals should issue extraordinary relief disqualifying the special-court-martial convening authority on the ground that he was an “accuser” or otherwise personally interested in the prosecution.

## Decision

- The court denied the petition for a writ of prohibition.
- The court concluded the record did not establish that Powell had an interest in the prosecution other than an official interest, and therefore did not show that he was disqualified as an “accuser.”
- The court determined that extraordinary relief was not warranted because the petitioner did not demonstrate a clear and indisputable right to the requested disqualification based on the facts presented.

## Legal Principles

- Extraordinary relief (such as prohibition) is an exceptional remedy; the petitioner must show a clear and indisputable right to relief and that the writ is appropriate in light of available remedies and the posture of the case.
- A convening authority may be disqualified as an “accuser” when the convening authority (a) signs and swears the charges, (b) directs that charges be signed and sworn by another, or (c) has an interest in the prosecution other than an official interest (i.e., a personal stake or involvement that calls neutrality into question).
- Actions taken in a commander’s official role in initiating or processing a case do not, standing alone, establish the type of personal interest required for “accuser” disqualification.
- Affidavits and the surrounding circumstances may be considered in evaluating whether a petitioner has made a sufficient showing that the convening authority’s involvement is personal rather than official.

## Conclusion

In McKinney’s pretrial petition, the Army Court of Criminal Appeals declined to remove the special-court-martial convening authority through extraordinary relief because the materials submitted did not show a personal interest beyond the convening authority’s official duties, and thus did not establish disqualification as an “accuser.”


McKinney v. Jarvis, 46 M.J. 870 (1997)