Disqualification – “bridging the gap” sessions

Overview of disqualification – “bridging the gap” sessions:

1. Background. The US Army Trial Judiciary Standard Operating Procedure encourages military judges to conduct a “post-trial critique” one-on-one with counsel after trial to improve trial skills. This practice can be problematic and judges should limit such discussions to trial advocacy tips as opposed to substantive matters. See United States v. Copening, 32 M.J. 512 (A.C.M.R. 1990) (suggesting “Bridging the Gap” may need reevaluation in light of issues arising concerning discussions by trial judges of legal issues that may come before them in future cases; ex parte discussions with counsel about the conduct of the trial; and discussions with counsel before the trial is final about rulings in the case).

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2. Improper sentencing considerations. United States v. McNutt, 62 M.J. 16 (C.A.A.F.

2005). Military judge revealed during the “Bridging the Gap” session that he framed
accused’s sentence to take into account good time credit. Military judge sentenced the
accused to seventy days with the idea that the accused would receive ten days good time
credit and would serve sixty days of confinement. CAAF reversed the sentence, finding
the military judge improperly considered the collateral administrative effect of good time
credit. “[S]entence determinations should be based on the facts before the military judge
and not on the possibility that [the accused] may serve less time than he was sentenced to
based on the Army’s policy.”

3. Improper comments about the accusedUnited States v. Hayes, NMCCA
200600910, 2010 WL 4249518 (N-M. Ct. Crim. App. Oct. 28, 2010). Male accused pled
guilty to indecent acts with another male in the barracks. Military judge made comments
during a post-trial “bridging the gap” session with counsel that suggested a bias against
homosexual conduct. In a unanimous decision, the N-MCCA found the military judge’s
comments created an appearance of bias that mandated disqualification; the court
affirmed the findings and set aside the accused’s sentence. Based on a DuBay hearing
convened, the court found the following about the military judge’s actions at trial and
during “Bridging the Gap”:

a. Assisting trial counsel. The military judge reviewed the stipulation of fact,
which read that the sexual contact between the accused and the other male was
consensual. The military judge then asked trial counsel if the victim might
contradict the stipulation of fact when he testified at sentencing. After a
“lengthy” discussion with counsel, military judge told trial counsel that he would
not allow the Government to go “beyond” the facts in the stipulation of fact,
specifically that the trial counsel could not present evidence that the sexual
interaction was non-consensual. Government then withdrew from the stipulation
and the defense counsel noted on the record that both of the counsel and the
accused had agreed to the stipulation and signed it, and that trial counsel only
withdrew after being “prompted” by the military judge. The military judge
responded he only noted a possible conflict and notified the parties. The accused
pled guilty and the victim testified during sentencing that he did not consent to
their sexual interaction.

b. “Bridging the Gap” comments. During a post-trial “Bridging the Gap”
session, the military judge made the following comments relevant to the case:
(1) “Marines should not be required to live in the barracks with people like
Seaman Hayes.”; (2) “[H]omosexuality has no place in our Armed Forces.”; (3)
There is a rational basis for the “don’t ask, don’t tell” (DADT) policy and
“homosexual acts are incompatible with the service.”; (4) Regarding DADT,
homosexual conduct presents leadership challenges as males are less cautious
than females, so homosexual males have a “continuing opportunity” to take
advantage of other males.

c. Held: Relying on R.C.M. 902(a), which requires recusal when the military
judge’s impartiality “might reasonably be questioned,” the court noted the
appearance of bias was sufficient to warrant judicial disqualification. Military
judge commented about “people like Seaman Hayes” while making other
comments that homosexuality is incompatible with “our Armed Forces.” The N-
MCCA reasoned the judge’s use of terms like “our” and “people like” – coupled
with his comments about the possible increased rate of sexual assaults if
homosexual Sailors and Marines lived in the barracks – would cause a reasonable
listener to believe the judge did not properly “compartmentalize” his beliefs
when adjudging the sentence. Specifically, comments suggest the military judge
believed punishment in this case must include a punitive discharge. “The
perception that a military judge has pre-determined a certain punishment for a
certain act or crime is, simply, unacceptable.”

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4. Suggestions for military judge. For military judges who elect to conduct “Bridging
the Gap” sessions, consider the following:

a. Never conduct ex parte.

b. Avoid giving substantive advice (e.g., “trial counsel, here is how you lay the
foundation for that exhibit that I helped you admit;” or “here’s how you properly
select a panel.”).

c. Always bear in mind the trial may not be truly “over.” United States v. Holt,
46 M.J. 853 (N-M. Ct. Crim. App. 1997), aff’d, 52 M.J. 173 (C.A.A.F. 1999)
(suggesting that, where trial judge provides post-trial “practice pointers” to
counsel prior to the cases being finalized, recusal would be mandated if the case
were sent back for some sort of rehearing).


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