MILITARY JUSTICE PERSONNEL: Military Judge: Qualifications and Appointment of

2010 (September Term)

United States v. Martinez, 70 M.J. 154 (an accused has a constitutional right to an impartial judge; RCM 902 recognizes this right and generally provides two bases for disqualification of a military judge; one provides for specific circumstances requiring disqualification; the other provides for a general rule of disqualification for certain appearances of partiality).

2008 (Transition)  

United States v. McIlwain, 66 M.J. 312 (except where the parties have waived disqualification of the military judge after full disclosure of the basis for disqualification, a military judge must recuse herself in any proceeding in which that military judge’s impartiality might reasonably be questioned). 


(whether a military judge should disqualify himself or herself is viewed objectively, and is assessed not in the mind of the military judge himself or herself, but rather in the mind of a reasonable man who has knowledge of all the facts; military judges should broadly construe possible reasons for disqualification, but also should not recuse themselves unnecessarily).

(that a military judge sat on companion cases does not, without more, mandate recusal). 


(a military judge abused her discretion by denying a defense motion to recuse herself in a members trial after declaring that her participation in companion cases would suggest to an impartial person looking in that she could not be impartial in the case and refusing to sit as trier of fact). 

(if a judge is disqualified to sit as judge alone, that judge is also disqualified to sit with members).   


United States v. Greatting, 66 M.J. 226 (under RCM 902(a), a military judge shall disqualify himself or herself in any proceeding in which that military judge’s impartiality might reasonably be questioned).

(presiding over companion cases does not alone constitute grounds for recusal; however, when an ex parte discussion about those cases takes place between the military judge and the SJA prior to appellant’s court-martial and while clemency matters and appeals in the companion cases were pending, that would lead a reasonable person to question the military judge’s impartiality). 



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).


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).


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)).

(the lack of a system which designates minimum standards of qualification for defense counsel in capital cases was not shown to have denied appellant due process; see United States v. Loving, 41 MJ 213, 298-299 (1994), aff’d on other grounds, 517 U.S. 748 (1996)).

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