Improper for Recused 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.”