United
States v. Lewis, 63 M.J. 405 (authority to
detail military judges has been
delegated to service secretaries; the Secretary of the Navy has further
delegated that authority to the Judge Advocate General who has
prescribed that
military judges will be detailed by and from a standing judiciary; in
addition,
military judges of general courts-martial are designated by and
directly
responsible to the Judge Advocate General of the service; neither the
government nor the defense at a court-martial is vested with the power
to
designate, detail, or select the military judge; conversely, neither
party can
usurp the authority of the service secretaries or Judge Advocates
General by
removing or unseating properly certified and detailed military judges).
United
States v. Jones, 55 MJ 317 (the test for
determining if
recusal is necessary under Title 28 USC § 455(a) is whether a
reasonable person
who knew all the facts might question these appellate military judges’
impartiality).
(Title 28 USC § 455(b)(3) shields parties from having their cases
tried
before a judge who may have formed opinions or gained knowledge via
prior
contact with the case in a governmental capacity).
(Title 28 USC § 455 governs the recusal of judges and is
applicable to cases involving the actions of appellate military
judges).
(perfunctory and mechanical responses to appellant’s requests for
enlargement of time did not create a reasonable question about
appellate
military judge’s lack of impartiality even though that appellate
military judge
had served as Director of the Appellate Government Division at the time
the
responses were filed, especially when appellant did not contest the
appellate
military judge’s lack of knowledge about and personal involvement with
appellant’s case).
(in view of the perfunctory nature of Deputy Director’s responses to
appellant’s requests for enlargement of time in this case, in
mechanical
adherence to standard Appellate Government Division practices, majority
concludes that it was appropriate to apply the actual prior involvement
standard to evaluate whether former Director of the Appellate
Government
Division may sit as an appellate military judge over an appellant’s
case; as
there was no actual involvement, appellant military judge did not
commit plain
error when he did not recuse himself sua sponte).
(Court of Appeals for the Armed Forces reserves judgment as to
whether the
actual prior involvement standard or a vertical imputation standard for
recusal
should be applied in future cases where judges are appointed to the
service
appellate courts after prior appellate division service).
2000
United
States v. Smith, No. 52 MJ 377 (while the military
judge
should be circumspect and refrain from injecting himself into the
proceedings
by propounding theories of his own for either party, Article 39(a)(4),
UCMJ,
and MRE 104(a) contemplate that the military judge determine the
admissibility
of evidence, which includes reasonable assessment of a party’s position
in a
particular case).
1999
United
States v. Gray, 51 MJ 1 (CAAF rejects claims that
detailed
defense counsel and/or the military judge were required to inform
appellant of
counsel’s perceived lack of competence or qualification with respect to
death
penalty litigation; the obligation to inform rests upon a counsel who
actually
believes he cannot represent a client).
(CAAF declines to establish minimum standards of qualification for
defense
counsel in capital cases; see United States v. Loving, 41
MJ 213,
300 (1994), aff’d on other grounds, 517 U.S. 748 (1996)).