Gonzalez & Waddington – Attorneys at Law

Cases of military judge disqualification – ex parte communications & conduct outside of court

Conduct outside of court

United States v. Quintanilla, 56 M.J. 37 (C.A.A.F. 2001). The military judge became involved in verbal out-of-court confrontations with a civilian witness that included profanity and physical contact. The military judge also engaged in an ex parte discussion with the trial counsel on how to question this civilian witness about the scuffle. The CAAF held the military judge’s failure to fully disclose the facts on the record deprived the parties of the ability to effectively evaluate the issue of judicial bias. As such, the court remanded the case for a DuBay hearing.

Contact with trial counsel

United States v. Butcher, 56 M.J. 87 (C.A.A.F. 2001). The military judge, who was presiding over a contested trial, went to a party at the trial counsel’s house and played tennis with the trial counsel. The CAAF reviewed whether the military judge abused his discretion by denying a defense request that the judge recuse himself. The CAAF advised that under the circumstances the military judge should have recused himself. However, the Court held there was no need to reverse the case, because there was no need to send a message to the field, the social interaction took place after evidence and instructions on the merits, and public confidence was not in danger (the social contact was not extensive or intimate and came late in trial).

Assisting trial counsel ex parte

United States v. Cornett, 47 M.J. 128 (C.A.A.F. 1997). Military judge did not abuse discretion when he denied a defense recusal request based on an ex parte conversation between military judge trial counsel, wherein the judge stated, “Well, why would you need that evidence in aggravation, because I’ve never seen so many drug offenses? Why don’t you consider holding that evidence in rebuttal and presenting it, if necessary, in rebuttal?” Military judge invited voir dire concerning any predisposition toward sentence; accused selected trial by judge alone pursuant to voluntary pretrial agreement term; counsel and accused were given a recess to confer about the challenge after the accused made his forum selection; and the military judge made full disclosure on the record and disclaimed any impact on him. RCM 902(a) requirements regarding recusal and disqualification were fully met.

Comments about accused outside of court

United States v. Miller, 48 M.J. 790 (N-M. Ct. Crim. App. 1998). Assuming arguendo that military judge stated, upon hearing that the accused suffered a drug overdose and was medically evacuated to a hospital, that the accused was a “cocaine addict and a manipulator of the system” and that “perhaps the accused would die,” such comments did not establish a personal bias or prejudice on part of the judge. Rather, the remarks indicated a high level of impatience and frustration with an unplanned delay in a scheduled court-martial proceeding. The test applied by the Navy court was whether the remarks reasonably suggests a “deep-seated and unequivocal antagonism” towards the accused as to make fair judgment impossible. See Liteky v. United States, 510 U.S. 540 (1994).


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