Gonzalez & Waddington – Attorneys at Law

CALL NOW 1-800-921-8607

Overview of military judges:

“Presence” Required

Overview of the “presence” required of military judges: The physical absence of the military judge at a pretrial proceeding does not deprive an accused of the structural due process protections created by Articles 26 and 39, UCMJ, and RCM 803, 804, and 805. The military judge held arraignment proceedings by speakerphone. The military judge was at Fort Stewart while the accused, DC and TC were in a courtroom at Fort Jackson.

Military judge advised the accused of all rights and the accused consented to the speakerphone procedure. The military judge was not “present” but the accused’s due process rights were not violated. The speakerphone procedure lasted for just twelve minutes of a seven hour trial and the judge was physically present for the remainder of the trial. Note, RCM 804(b) has since been amended to allow for “the use of audiovisual technology” for Article 39(a) sessions, subject to authorization by the applicable Service Secretary.

Disqualification of the military judge (recusal) – in General

Overview of disqualification (recusal) – in general: Under R.C.M. 902(a), “a military judge shall disqualify himself or herself in a proceeding in which that military judge’s impartiality might 21-24 reasonably be questioned.” R.C.M. 902(e) allows parties to waive any ground for challenge predicated on this subsection.

Legal standard for recusal

The Discussion to R.C.M. 902(d)(1) directs a military judge to “broadly construe grounds for challenge” but not to “step down from a case unnecessarily.” On appeal, a military judge’s decision regarding recusal will be reviewed fаr an abuse of discretion.

Non-waivable grounds for recusal

Under RCM 902(b), five non-waivable (and rare) grounds are listed, directing that a military judge should be disqualified if he or she: (1) has a personal bias or prejudice about a party or personal knowledge of “disputed” facts in the case; (2) has acted as counsel, investigating officer legal officer, SJA , or convening authority for any of the offenses; (3) has been or will be a witness in the case, was the accuser, forwarded charges with recommendations, or expressed opinion about the accused’s guilt; (4) is not qualified under RCM 502(c) or not detailed under RCM 503(b); or (5) is personally or has a family member who is a party to the proceeding, has a financial or other interest in the outcome of the proceeding, or likely to be a “material” witness.

Appellate review – Liljeberg factors

On appeal, courts apply the three factors from Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847 (1988), to determine if reversal is warranted when a military judge should have been recused: (1) risk of injustice to the parties in the case, (2) risk that the denial of relief will result in injustice in other cases, and (3) the risk of undermining public confidence in the judicial process.

Improper for Recused Military Judge to Select Replacement

Case detailing how it is improper for recused judge to select replacement:

United States v. Roach, 69 M.J. 17 (C.A.A.F. 2010). The accused’s case was originally affirmed by an Air Force Court of Criminal Appeals panel that included the chief judge. The case went to CAAF and was remanded back to the AFCCA . While the initial CAAF review was pending, the AFCCA chief judge commented about the case at two public events. Following a motion by the defense, the chief judge recused himself from the case. The chief judge then sent an e-mail to the executive officer for the Air Force TJAG recommending that a specific judge be appointed to replace the chief judge on the case.

The Air Force TJAG appointed this judge, who then convened the panel that considered the remanded case. CAAF vacated the AFCCA decision and remanded for new Article 66 review, finding the chief judge improperly took action in the case after recusal when he recommended his replacement. CAAF noted, “[E]ither a military judge is recused or he is not.” Once recused, a judge shall not take further action in a case. If a military judge deviates from this requirement, “no matter how minimally,” it “may leave a wider audience to wonder whether the military judge lacks the same rigor when applying the law.”


Skip to content