Military Judge Disqualification – judicial exposure
Overview of military judge disqualification – judicial exposure:
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1. General rule. United States v. Soriano, 20 M.J. 337 (C.M.A. 1985). If the military judge is accuser, witness for prosecution, or has acted as investigating officer or counsel, disqualification of military judge is automatic. But military judge need not recuse himself solely on basis of prior judicial exposure to the accused. See also United States v. Proctor, 34 M.J. 549 (A.F.C.M.R. 1992).
2. Prior judicial rulings. Liteky v. United States, 510 U.S. 540 (1994). Supreme Court (interpreting 28 U.S.C. § 455(b)(1)) indicates that prior judicial rulings against a moving party almost never constitute a basis for a bias or partiality recusal motion. Recusal not required except when prior rulings or admonishments evidence deep-seated favoritism or antagonism as would make a fair judgment impossible. Cited in United States v. Loving,
41 M.J. 213 (C.A.A.F. 1994).
3. Contact with SJA/DSJA. Military judges should not communicate with the SJA
office about pending cases. In United States v. Greatting, 66 M.J. 226 (C.A.A.F. 2008),
the military judge presided over three companion cases before hearing the present case.
The accused’s defense counsel questioned the military judge about the other cases and
the judge admitted to having ex parte communications with “the staff judge advocate and
probably his deputy” about the companion cases. Specifically, the military judge
remembered saying that, for one co-accused, Government “sold the case too low given
his culpability.” For the other two cases, he “questioned the appropriateness of their
being at a special court-martial.” Based on the military judge’s communications with the
SJA and “probably his deputy,” trial defense counsel made a motion for the judge to
recuse himself under RCM 902(a) for implied bias. The military judge denied the
request. In reversing, the CAAF noted, “[T]he ex parte discussion that took place
between the military judge and the SJA prior to Greatting’s court-martial and while
clemency matters and appeals in the companion cases were pending would lead a
reasonable person to question the military judge’s impartiality.”
a. The military judge provided “case-specific criticism” to the SJA (and
“probably his deputy”) about companion cases, knowing that the accused’s case
was still pending. The court noted the SJA was “the very individual responsible
for advising the convening authority,” and the military judge made ex parte
comments while clemency matters in the other cases were pending and, likely,
before the accused’s pretrial agreement had been finalized.
b. The military judge also commented on the accused’s level of culpability as
one of the “two staff NCOs.” By contrast, the military judge “questioned” (his
word) whether the two junior Marines should have been sent to a special court-
martial at all.
4. Companion cases / implied bias. As a general rule, a military judge is not per se
disqualified from presiding over companion cases. In United States v. McIlwain, 66 M.J.
312 (C.A.A.F. 2008), before the accused made forum election, the military judge stated
on the record that she had presided over two companion cases (one a guilty plea and one
a mixed plea). In the course of those companion cases, the military judge conducted
providence inquiries and heard evidence that implicated the accused. The military judge
advised defense counsel: “[I]f your client desires to go with a judge alone, then I would
not sit; I would recuse myself. If your client decides to go with a panel of either all
officers or officers and enlisted members, then I’m comfortable that I will be able to
objectively instruct the members, rule on objections, and that sort of thing, because my
role is different.” The accused elected trial by member and challenged the military judge.
In response, the military judge noted she had made decisions favorable to the accused
regarding witness credibility in the companion cases, decisions that “would suggest to an
impartial person looking in that I can’t be impartial in this case” if serving as the fact
finder; however, the military judge reiterated that she would be comfortable presiding
over a members case. The CAAF held the military judge abused her discretion in
refusing the recusal request and set aside the findings and sentence. on the military
judge’s concession that an “impartial person” would have questioned her impartiality, the
CAAF held the military judge abused her discretion in denying the recusal motion.
a. First, the court noted it was not relevant that the military judge was not
ultimately the factfinder. “It is well-settled in military law that the military judge
is more than a mere referee.” “Every time she ruled on evidence, asked
questions, responded to member questions, or determined instructions, the
military judge exercised her discretion, a discretion that she admitted an impartial
person would conclude had not been exercised in an impartial manner.”
b. Second, in fashioning a remedy, the court noted that “not every judicial
disqualification error requires reversal” and then applied Supreme Court’s three-
part test from Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 864
(1988). The Liljeberg test considers (1) the risk of injustice to the parties; (2) the
risk that the denial of relief will produce injustice in other cases; and (3) the risk
of undermining public confidence in the judicial process. The court focused on
the first and third factors, noting that the risk of injustice to the parties is “high”
when a military judge states a bias on the record yet continues to preside over the
case and that the military judge’s refusal to recusal herself likely had a “corrosive
impact on public confidence in the military justice system.”
c. The CAAF noted that sitting on companion cases, without more, does not
mandate recusal (citing United States v. Oakley, 33 M.J. 27, 34 (C.M.A. 1991)).
d. See also United States v. Nave, ACM 36851, 2008 WL 5192217 (A.F. Ct.
Crim. App. Dec. 10, 2008) (unpublished) (military judge not required to recuse
after presiding over three companion cases, even though two of those co-accused
were set to testify in this case and the military judge had ruled in a companion
case about an entrapment defense the accused planned on raising).
5. Repeated sua sponte (and pro-Government) decisions. United States v. Johnston,
63 M.J. 666 (A.F. Ct. Crim. App. 2006). Military judge “abandoned his impartial role in
th[e] case solely on the basis of his actions and rulings during the trial.” The court noted
the ruling was unusual because a specific ground for dismissal did not arise under RCM
902 but that after applying an objective test, based on the standpoint of a person watching
the proceedings, the judge’s rulings created the appearance of partiality in favor of the
Government. The military judge twice sua sponte reversed a previous judge’s ruling and
admitted evidence regarding statements made by the accused’s wife that were strongly
pro-Government. The court stated that although no actual bias by the military judge was
noted, the judge abused his discretion by not disqualifying himself under RCM 902.
Findings and sentence reversed.
6. United States v. Rivers, 49 M.J. 434 (C.A.A.F. 1998). The military judge did not
abuse his discretion in denying defense motion that he recuse himself based on the fact
that he had ruled on a command influence issue similar to the accused’s in a companion
case, and that he had learned that accused had offered to plead guilty. The military judge
ruled in the accused’s favor on the UCI issue, and no incriminating evidence or
admissions from the accused relating to the offer to plead guilty were disclosed during
trial on the merits. There was no reasonable doubt about the fairness of accused’s trial.
7. United States v. Howard, 50 M.J. 469 (C.A.A.F. 1999). No prejudicial error occurred
where military judge presided at prior case involving accused (who was tried twice, first
for assault, then for AWOL). Military judge noted prior adjudication on the record and
accused maintained he wished to proceed with the present judge. During the sentencing
phase in the AWOL case, the defense introduced the accused’s version of the events
underlying the prior conviction; military judge interrupted defense counsel and stated
that, although he had awarded the accused “an unusually light sentence for a fractured
jaw,” he found him guilty during that prior trial because he had kicked the victim in the
head while he was on the ground. CAAF held that there was no error.
8. Busted providence inquiry.
a. United States v. Bray, 49 M.J. 300 (C.A.A.F. 1998). The military judge is
not required, per se, to recuse himself from further proceedings in a trial when he
has conducted a providence inquiry, reviewed a stipulation of fact, and entered
findings of guilty to initial pleas. Here, accused withdrew plea based on possible
defense that came out during sentencing. Later, he obtained a new pretrial
agreement, and returned to plead guilty. Military judge could preside over
second case unless he had formed an “intractable opinion as to the accused’s
guilt,” and a reasonable person who knew the facts of the case would question
the appearance of impurity and have doubts as to the military judge’s
b. United States v. Winter, 35 M.J. 93 (C.M.A. 1992). Military judge is not per
se disqualified after conducting a providence inquiry and then rejecting accused’s
plea of guilty to a lesser included offense. Counsel and judges should determine
whether the judge should ask the accused if accused wants to continue to be tried
by judge alone when the judge has rejected the plea. But see United States v.
Rhule, 53 M.J. 647 (A. Ct. Crim. App. 2000) (stating that the Army’s preference
is for the military judge to recuse himself after the withdrawal of a guilty plea).
c. United States v. Dodge, 59 M.J. 821 (A.F. Ct. Crim. App. 2004), rev’d on
other grounds, 60 M.J. 368 (C.A.A.F. 2004). Accused completed the entire
providence inquiry but prior to the announcement of findings the parties
disagreed over the maximum punishment. The accused then requested to
withdraw his plea and proceed to trial, which request the military judge granted,
and the case was adjourned for sixty days. During forum selection for the now
contested proceeding, the accused claimed his rights to forum were
circumscribed by the continued presence of the military judge who heard his
providence inquiry and that he had no practical option but to select a trial by
members. Military judge allowed the accused to voir dire her regarding her
potential bias and denied his challenge noting “she had not accepted [his] plea,
had not formed an opinion concerning his guilt or innocence and everything she
knew about the case was learned in her judicial capacity.” Subsequently, accused
pled guilty to the same specifications (except for one) that he attempted to plead
guilty to in the first hearing. AFCCA held the accused’s forum rights were not
impinged citing RCM 903(c)(2)(B) and stated “there is no concomitant absolute
right” to have a case tried by military judge alone. Further the court held the
military judge is not disqualified “based simply on her participation in the first
providence inquiry.” The court declined to adopt the Army’s approach in this
situation stating “We are aware of the [ACCA’s] approach . . . expressing a
preference for recusal after withdrawal of guilty pleas” (citing Rhule) but “this
Court rejected that approach long ago.”
9. Knowledge of witnesses.
a. Exposure to witnesses. United States v. Davis, 27 M.J. 543 (C.M.A. 1988)
(military judge must use special caution in cases where he has heard a witness’
testimony against a co-actor at a prior trial); United States v. Oakley, 33 M.J. 27
(C.M.A. 1991) (exposure to motions and pleas at prior trial of co-actors did not
require recusal of military judge in trial before members).
b. Relationship to witness. United States v. Wright, 52 M.J. 136 (C.A.A.F.
1999). Military judge announced at trial that he had a prior “close” association
with NCIS agent stemming from a duty station at which the military judge, as a
prosecutor, worked closely with the agent on several important criminal cases.
Military judge said he felt the NCIS agent was an honest and trustworthy person
and a very competent NCIS agent, but that the witness would not have a “leg up”
over the credibility of other witnesses, particularly the accused. The judge said
he gave all members of the Marine Corps a certain “credence.” CAAF noted that
military judges have broad experiences and a wide array of backgrounds that are
likely to develop ties with other attorneys, law firms, and agencies. Here,
military judge’s full disclosure, sensitivity to public perceptions, and sound
analysis objectively supported his decision not to recuse himself; these factors
contribute to a perception of fairness.
c. United States v. Phillipson, 30 M.J. 1019 (A.F.C.M.R. 1990). Inadvertent
exposure to sentence limitation does not require judge to recuse himself.
d. Consultations. United States v. Baker, 34 M.J. 559 (A.F.C.M.R. 1992).
Military judge’s consultations with another judge concerning issue in a case is
e. Further actions void. United States v. Sherrod, 26 M.J. 30 (C.M.A. 1988)
(holding when a judge is disqualified, all further actions are void). See also
United States v. Howard, 33 M.J. 596 (A.C.M.R. 1991) (holding when military
judge becomes a witness for the prosecution, he is disqualified and all further
actions, as in Sherrod, are void). United States v. Wiggers, 25 M.J. 587
(A.C.M.R. 1987) (holding when military judge recognized that his prior
determination of witness’ lack of credibility disqualified him from acting as fact
finder, judge should have recused himself rather than direct a trial with
members). But see United States v. Burris, 25 M.J. 846 (A.F.C.M.R. 1988)
(holding presiding over earlier trial involving same urinalysis inspection did not
disqualify trial judge). See also United States v. Cornett, 47 M.J. 128 (C.A.A.F.
f. Accused’s waiver of disqualification under RCM 902(e). United States v.
Keyes, 33 M.J. 567 (N.M.C.M.R. 1991). Military judge previously sat in a
different case involving the accused. Defense had no challenge under RCM
902(b) and waived any challenge to the judge that might exist under RCM
902(a). Military judge properly recognized a sua sponte obligation to disqualify
himself if warranted even with a defense waiver under 902(e). The military
judge, however, found no basis for disqualification. Upheld by NMCMR.