Disqualification (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.
1. 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.
2. 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
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”
3. 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.