MILITARY JUSTICE PERSONNEL: Military Judge: Conduct/Misconduct

2013 (September Term)

United States v. Leahr, 73 M.J. 364 (during a trial on the merits, a military judge’s comments thanking a witness for his efforts to protect the alleged victim and asking defense counsel before findings whether a witness would be subject to recall as a sentencing witness did not present deep-seated favoritism or antagonism so as to deny appellant a fair trial; however, military judges should be careful not to make such comments). 

2012 (September Term)

Hasan v. Gross, 71 M.J. 416 (in the military context, the appearance of bias principle with respect to the recusal of a military judge is derived from RCM 902(a): “A military judge shall disqualify himself . . . in any proceeding in which that military judge’s impartiality might reasonably be questioned.”; the standard for identifying the appearance of bias is objective: any conduct that would lead a reasonable man knowing all the circumstances to the conclusion that the judge’s impartiality might reasonably be questioned).

(as in the civilian context, recusal of a military judge based on the appearance of bias is intended to promote public confidence in the integrity of the judicial process; what matters is not the reality of bias or prejudice but its appearance; in the military justice system, where charges are necessarily brought by the commander against subordinates and where, pursuant to Article 25, UCMJ, the convening authority is responsible for selecting the members, military judges serve as the independent check on the integrity of the court-martial process; the validity of this system depends on the impartiality of military judges in fact and in appearance). 

(in this case, the removal of the military judge based on the appearance of bias was appropriate where the military judge had appellant, a practicing Muslim, removed from the courtroom because of his beard, where the military judge issued appellant six contempt citations for failing to shave, where the military judge ordered appellant’s forcible shaving in the absence of any command action to do the same and in the absence of sufficient evidence to demonstrate that appellant’s beard materially interfered with the proceedings, where the military judge impliedly accused appellant of soiling the floor of the deliberation room latrine and banned appellant from using that latrine again, and where the military judge and his family were present on base on the day of the shooting incident at issue in the court-martial; all of these circumstances could lead an objective observer to conclude that the military judge was not impartial towards appellant; in fact, it could reasonably appear to an objective observer that the military judge had allowed the proceedings to become a duel of wills between himself and appellant rather than an adjudication of the serious offenses with which appellant was charged; based on a combination of the aforementioned factors, a reasonable person, knowing all the relevant facts, would harbor doubts about the military judge’s impartiality). 

2010 (September Term)

United States v. Martinez, 70 M.J. 154 (when a military judge’s impartiality is challenged on appeal, the test is whether, taken as a whole in the context of this trial, a court-martial’s legality, fairness, and impartiality were put into doubt by the military judge’s actions; the appearance of impartiality is reviewed on appeal objectively and is tested under the following standard: any conduct that would lead a reasonable man knowing all the circumstances to the conclusion that the judge’s impartiality might reasonably be questioned is a basis for the judge’s disqualification; because not every judicial disqualification requires reversal, the standards announced by the Supreme Court in Liljeberg [486 US 847 (1988)] are used to determine whether a military judge’s conduct warrants that remedy to vindicate public confidence in the military justice system).

(Rule 1.2 of the ABA Model Code of Judicial Conduct, mirrored by the Code of Judicial Conduct for Army Trial and Appellate Judges, provides that a judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety or the appearance of impropriety; paramount among a military judge’s continuing ethical responsibilities, consistent with the Model Code and pursuant to the Army Code, is to ensure against improper ex parte communications and the appearance of partiality; specifically, Rule 2.9 provides a general prohibition against initiating, permitting, or considering ex parte communications involving substantive matters, except in very limited circumstances; in this case, the supervisory military judge’s communications with the trial counsel during the trial concerning the legal sufficiency of the providence inquiry and/or the legal sufficiency of the inquiry into the pretrial agreement involved substantive matters, and it was plain and obvious error for her to initiate those ex parte communications with trial counsel; compounding this error, the supervisory judge entered the presiding trial judge’s chambers during a recess she initiated as well as during the deliberations, and failed to inform the trial judge that she had been communicating ex parte with the prosecution; a reasonable person knowing all these circumstances would have observed the supervisory judge privately conferring with the trial counsel and then accompanying the presiding judge into his chambers during recess and deliberations; this course of conduct under the circumstances created an appearance that neither the supervisory judge nor the trial judge was impartial). 

2009 (September Term)

United States v. Roach, 69 M.J. 17 (a recusal of a judge means the judge may not preside over any subsequent proceedings in the case or perform any other judicial actions with respect to it; once recused, a military judge should not play any procedural or substantive role with regard to the matter about which he is recused; when a judge is recused, the judge should not take action to influence the appointment of his or her replacement).

 

(the chief judge of a court of criminal appeals may not recommend to the JAG an acting chief judge for a case in which the chief judge is recused; by taking a procedural step after his recusal, at a minimum, the chief judge’s actions create the appearance of directly impacting a case from which he was recused).

 

(in this case, although the error by the chief judge in recommending to the JAG an acting chief judge for a case in which the chief judge was recused was a nonstructural error, it nonetheless was not harmless where public confidence in the military judicial process was surely undermined when judge who was recommended by the recused judge subsequently presided over the case, reviewed the recused judge’s prior conduct, and wrote the opinion upholding the recused’s judge’s conduct). 


2008 (Transition)

 

United States v. Greatting, 66 M.J. 226 (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).


(when assigned to the judiciary, the military judge frequently will find himself or herself in close and continuing contact with judge advocates outside the courtroom; in light of these and other circumstances, members of the military judiciary must be particularly sensitive to applicable standards of judicial conduct). 

 

(ex parte contact with counsel does not necessitate recusal under RCM 902(a), particularly if the record shows that the communication did not involve substantive issues or evidence favoritism for one side; however, an ex parte communication which might have the effect or give the appearance of granting undue advantage to one party cannot be condoned; the same holds true when considering the propriety of ex parte contact between a military judge and an SJA). 

 
(military judge who presided over four companion cases abused his discretion by not recusing himself after having an ex parte discussion with the convening authority’s SJA and probably his deputy in which he provided case-specific criticism about the companion cases before clemency matters had been resolved in any of those cases and possibly before the pretrial agreement in appellant’s case had been finalized and in which he commented on the potential culpability of appellant; the military judge’s ex parte discussion with the SJA would lead a reasonable person, knowing all the circumstances, to the conclusion that the military judge’s impartiality might reasonably be questioned and he was obliged to recuse himself for implied bias under RCM 902(a)). 

 

2007


United States v. Foster, 64 M.J. 331 (a military judge’s impartiality is crucial to the conduct of a legal and fair court-martial; the military judge may participate actively in proceedings to assure that court-martial members receive the information that they need to determine whether the accused is proven guilty; however, the military judge must take care not to become an advocate for either party). 

 

(there is a strong presumption that a military judge is impartial in the conduct of judicial proceedings). 

 

(the accused did not establish that the military judge was impartial based on an allegation that he improperly limited the testimony of the defense expert when he ruled that she could not reveal her personal assessment of a child victim’s credibility, where such limitation on the testimony of the expert was appropriate; testimony about a victim’s credibility or its functional equivalent is not admissible). 

 

(a military judge can and sometimes must ask questions in order to clear up uncertainties in the evidence or to develop the facts further; because jurors are ever watchful of the words that fall from him, however, a military judge must be circumspect in what he says to the parties and in how he examines witnesses). 

 

(military judges should take care to elicit information in a neutral manner and to avoid the kind of approach that closely resembles the tenor of cross-examination). 

 

(the accused did not establish that the military judge was impartial based on an allegation that he conducted a hostile examination of the defense expert in front of the members; although the tenor used by the military judge in questioning the defense expert closely resembled cross-examination, nevertheless, judging from the standpoint of a reasonable observer, taken as a whole in the context of this trial, the limited exchange between the military judge and the defense expert cast no doubt upon the court-martial’s legality, fairness, and impartiality). 

 

(expert testimony is appropriate where scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue; when an individual testifies as an expert under MRE 702, it is precisely because the military judge has found that individual to hold the requisite qualifications of an expert; the members are entitled to be informed of that designation and a military judge must not impose his or her own views to either diminish or enhance that important role). 

 

(the accused did not establish that the military judge was impartial based on an allegation that the military judge’s expert witness instruction essentially told the members that the defense expert’s testimony was worthless because it (1) failed to identify the defense expert as an expert, (2) inaccurately summarized her testimony, and (3) characterized her testimony as educational and that of the government’s expert as specialized; although the military judge erred in failing to use the term expert and by substituting that term with the terms specialized and educational, the instruction did not raise any reasonable doubt about the military judge’s impartiality, where the judge’s refusal to use the term expert applied equally to both parties’ witnesses and the term educational testimony was not critical of the defense expert or prejudicial to the accused’s defense). 

 

(the accused did not establish that the military judge was biased against the defense expert based on comments made by the judge about that expert outside the presence of the members; although the military judge made several intemperate and inappropriate statements concerning the defense expert’s experience, ego, and the need to control her testimony, this personal expression of irritation did not impact the accused’s right to a fair trial in light of the fact that the comments were not heard by the court-martial members). 


2002

United States v. Butcher, 56 MJ 87 (an accused has a  constitutional right to an impartial judge).

(RCM 902(a), governing disqualification of military judges for appearance of bias, maintains public confidence in the judicial system by avoiding even the appearance of partiality and enhances confidence in the fairness of the proceedings because in matters concerning bias, the line between appearance and reality is often barely discernable).

(in the course of reviewing the military judge’s ruling under RCM 902(a) for abuse of discretion, the facts and circumstances are considered under an objective standard:  Any conduct that would lead a reasonable man knowing all the circumstances to the conclusion that the judge’s impartiality might reasonably be questioned is a basis for the judge’s disqualification).

(although the appearance of bias standard does not require judges to live in an environment sealed off from the outside world, the interplay of social and professional relationships in the armed forces poses particular challenges for the military judiciary, and military judges must be particularly sensitive to applicable standards of judicial conduct).

(activity inconsistent with standards of judicial conduct does not mandate recusal unless it rises to the level of a violation of applicable disqualification standards).

(there is no mandated particular remedy for situations in which an appellate court determines that the military judge should have removed himself or herself from a case).

(there is a three-part test for determining whether reversal of a conviction or decision is warranted as a remedy when a judge has erred in failing to recognize that disqualification was required because the judge’s impartiality might be questioned:  the reviewing court will consider (1) the risk of injustice to the parties in the particular case, (2) the risk that denial of relief will produce injustice in other cases, and (3) the risk of undermining the public’s confidence in the judicial process).

(although court assumes that military judge should have recused himself, reversal was not warranted where:  (1) events giving rise to disqualification occurred near end of trial; (2) the military judge was not called upon to exercise discretion on any matter of significance concerning findings after that point; (3) appellant was sentenced by members; (4) appellant received one of the sentence alternatives requested by defense counsel; (5) it was not necessary to reverse this case to ensure that military judges exercise the appropriate degree of discretion in the future; and (6), under the circumstances, reversal is not required to avoid undermining the public’s confidence in the judicial process).

(based on the following factors, the court assumes without deciding that the military judge should have recused himself under the appearance of bias standard of MRE 902(a):  (1) during a weekend recess prior to giving findings instructions, the military judge attended a party at the home of trial counsel; (2) the posted invitation to the party stated, “To Promote Peace, Love, and Harmony Among Trial & Defense Counsel in the Greater San Antonio Metropolitan Area.  Yeah, Right!”; (3) appellant’s defense counsel did not attend the party; (4) appellant’s case was not discussed other than a comment by the military judge that the case lasted longer than anticipated;  (5) at the party, the military judge agreed to play doubles tennis with trial counsel as his partner; and (6) the day after the party, the military judge played a practice tennis match with trial counsel, although appellant’s case was not discussed).

United States v. Quintanilla, 56 MJ 37 (the ABA Model Code of Judicial Conduct and the ABA Standards for Criminal Justice provide guidance on the proper conduct of criminal trials and are the standards to which judges should aspire).

(the standards applicable to military judges are enforced primarily through disciplinary action and advisory opinions; actions that violate codes of conduct do not necessarily provide a basis either for disqualification of a judge or reversal of a judgment unless otherwise required by applicable law).

(a military judge shall perform the duties of judicial office impartially and diligently, including requirements that the judge "be patient, dignified and courteous to litigants, jurors, witnesses, lawyers, and others" and that the "judge shall not . . . by words or conduct manifest bias or prejudice." ABA Model Code of Judicial Conduct (2000 ed.), Canon 3, Sections B(4) and B(5)).

(an accused has a constitutional right to an impartial judge).

(in carrying out his or her duties: a military judge must avoid undue interference with the parties’ presentations or the appearance of partiality; the military judge must exert his or her authority with care, so as not to give even the appearance of bias for or against either party; the military judge is charged with ensuring the dignity and decorum of the proceedings and conducting trials in an atmosphere which is conducive to calm and detached deliberation and determination of the issues presented).

(impartiality does not mean that the military judge should act simply as an umpire in a contest between the Government and the accused; the judge fulfills a complex role, exercising evenhanded control over the proceedings without veering, or appearing to veer, to far to one side of the other).

(actions taken in the course of a trial may warrant disqualification of the military judge where it can be shown that such bias was either directed against a party or its counsel, or in favor of the adverse party or counsel, or that the challenged judge, in order to compensate for the appearance of such a bias, has bent over backwards to make it seem as though he has not acted as a result of such bias).

(there is a strong presumption that a judge is impartial, and a party seeking to demonstrate bias must overcome a high hurdle; remarks, comments, or rulings of a judge do not constitute bias or partiality unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible).

(military judge should steer clear of circumstances that would demonstrate bias or the appearance of bias including ex parte communications on the merits, or procedures affecting the merits, or a pending or impending proceeding).

(the fact of an ex parte communication alone does not mandate disqualification, particularly if the record shows that that conversation did not involve substantive issues or evidence favoritism to one side – a decision on disqualification will depend upon: (1) the nature of the communication; (2) the circumstances under which it was made; (3) what the judge did as a result of the ex parte communication; (4) whether it adversely affected a party who has standing to complain; (5) whether the complaining party may have consented to the communication being made ex parte and, if so, whether the judge solicited such consent; (6) whether the party who claims to have been adversely affected by the ex parte communication objected in a timely manner; and (7) whether the party seeking disqualification properly preserved its objection).

(the disqualification standards of RCM 902 parallel the statute governing disqualification of federal civilian judges, 28 USC § 455; the standards developed in federal civilian courts, as well as military case law, are considered when addressing disqualification issues arising under RCM 902).

(RCM 902 divides the grounds for disqualification into two categories: (1) RCM 902(b) lists five specific circumstances connoting actual bias; and (2) RCM 902(a) addresses the appearance of bias requiring disqualification of a military judge when that military judge’s impartiality might reasonably be questioned).

(the appearance of bias requiring disqualification of a military judge when that military judge’s impartiality might reasonably be questioned is designed to enhance public confidence in the integrity of the judicial system and to reassure the parties as to the fairness of the proceedings).

(counsel may move for the disqualification of a military judge, but military judges also have a continuing duty to recuse themselves if any of the bases of disqualification under RCM 902 develop).

(of all the grounds for disqualification in RCM 902, only the appearance of bias may be waived, RCM 902(a), after full disclosure of the basis on the record. RCM 902(e)).

(a judge’s decision on the issue of disqualification is reviewed for abuse of discretion).

(because the military judge did not ensure that the record reflected a full disclosure as required by RCM 902(e), court found it inappropriate to conclude on the present state of the record that the defense counsel waived the appearance of bias disqualification in this case – specifically, the record was deficient in the following respects: (1) the military judge never disclosed an ex parte conversation with trial counsel about the timing of a witness’s testimony; (2) the military judge failed to provide a complete description of his out-of-court confrontations with a witness; (3) what description there is was not coherent and made it difficult to determine precisely what happened during the confrontations; and (4) the judge put the witness on the stand and questioned him in a manner that minimized the disclosure of information about the events).

(when a military judge’s impartiality [appearance of bias] is challenged on appeal, the test is whether, taken as a whole in the context of this trial, a court-martial’s legality, fairness, and impartiality were put into doubt by the military judge’s actions; this test is objective, judged from the standpoint of a reasonable person observing the proceedings).

(the military judge erred in interjecting himself into a problem of witness production by leaving the bench during trial and engaging in out-of-court, off-the-record actions without first ascertaining the facts; the matter of witness production was a responsibility of the trial counsel).

(the fact that the military judge failed to perform his duty to fully disclose on the record the events of his out-of-court confrontation with a witness after the events became an issue could cause a reasonable person to question the judge’s impartiality in the proceedings).

(ambiguity in the record concerning the military judge’s confrontation with a witness could cause a reasonable person to question the judge’s impartiality in the proceedings and flows from the following: (1) numerous discussions between the military judge and spectators contain cryptic and incomplete references to persons and events; (2) the military judge’s interaction with witnesses and counsel was marked by numerous interruptions, incomplete sentences, and references to persons and events whose significance was not explained; (3) at least one off-the-record RCM 802 session was not adequately summarized on the record; (4) references to out-of-court developments were vague and incomplete, with little to identify the source of information and whether the information was shared with counsel; (5) the record regarding trial counsel’s motion to recuse the military judge and related intent to submit an interlocutory appeal on that issue is unclear; and (6) the military judge failed to disclose an ex parte conversation with trial counsel about the timing of a witness’s testimony).

(the military judge’s continued participation in the case, after the development of a stipulation that relied extensively on the judge’s personal knowledge of out-of-court events and that placed the judge’s stature and credibility in contest with the credibility of a witness, and adversely reflected on the military judge’s own professional conduct, clearly raised questions about his impartiality under RCM 902(a)).

(there is a three-part test for determining whether reversal of a conviction or decision should be granted as a remedy when a judge has failed to recognize that his or her disqualification was required because the judge’s impartiality might reasonably be questioned: the reviewing court will consider (1) the risk of injustice to the parties in the particular case, (2) the risk that denial of relief will produce injustice in other cases, and (3) the risk of undermining the public’s confidence in the judicial process).

(the state of the record makes it impossible for the court to test the failure of the military judge to recuse himself under RCM 902(a), and a remand for fact-finding proceedings was ordered, where: (1) the actual events surrounding the military judge’s confrontation with a witness are unclear; (2) it is not possible to determine precisely what defense counsel knew about the events while the trial was ongoing; (3) the impact these events had on the entire trial is not clear; (4) post-trial filings do not clarify these matters because they also contain gaps and inconsistencies; (5) there are disparities in the record about whether defense counsel observed any of the out-of-court interactions between the military judge and the witness; and (6) the documents prepared by various attorneys in the course of the post-trial review reflect inconsistent descriptions of what transpired at trial as well).
 

2000

United States v. Thompson, 54 MJ 26 (critical, disapproving, or even hostile judicial remarks concerning defense counsel do not require a judge to recuse himself in the ordinary case).

(even though nerves may have become frayed during a give and take between the military judge and defense counsel, the military judge was not obligated to recuse himself where:  the record reflects efforts by the military judge to clarify and remedy previously asserted defense concerns where admissions of ineffectiveness were made; the record shows that the military judge was tough on trial counsel as well as defense counsel; the military judge expressly disclaimed any bias against defense counsel; and the record shows repeated statements by defense counsel resisting the military judge’s attempts to remedy previously asserted errors in the case).

1999

United States v. Watt, 50 MJ 102 (the military judge’s duties to ensure a fair trial, to avoid the appearance of partiality, to remain impartial, and to not assist in the conviction of an accused call upon a military judge to strike a delicate balance when he seeks to obtain evidence not presented by the parties and question witnesses).

(military judge abandoned his impartial role and assisted in the conviction of the accused when he prohibited the accused from testifying about the victim’s sexual reputation, posed questions to the accused which required the accused to say that he could not answer because of the judge’s ruling, permitted trial counsel to invoke the same response from the accused, and gave limiting instructions which created doubt about the accused’s credibility).

United States v. Cooper, 51 MJ 247 (military due process requires a military judge who appears impartial throughout the court-martial, but the military judge is expressly permitted to question witnesses if done in a fair and impartial manner; the failure to object to the military judge’s questions strongly suggests that defense did not believe that the questions caused the military judge to lose his impartiality of appearance of impartiality).

(the mere fact that answers to questions posed by the military judge may help or hurt one party does not suggest partiality, especially where the military judge makes clear his neutral purpose in asking the questions and gives unequivocal instructions to the members that they should not view his questions as indicating a pro-prosecution opinion on his part in this case).

(claim that military judge humiliated defense counsel was overstated and judge’s personal expressions of irritation with defense counsel did not divest military judge of appearance of impartiality or support partiality challenge where:  (1) defense counsel lodged no objection to military judge’s curative instructions on grounds that such comments evidenced further bias for the government; (2) defense counsel made no motion to disqualify the military judge; (3) the judge’s reprimand was no more than a mild rebuke of defense counsel; and (4) the comments were couched within unequivocal instructions protecting appellant against any impermissible use of his comments).

(military judge’s comments on the poor quality of defense videotape evidence, viewed in context, reflected a frustration with the form of the evidence, not party presenting it, and military judge directly helped the defense present its evidence in a more understandable fashion).

(the burden is upon an accused to object to evidentiary comments which might possibly be perceived as unfair, and absent objection the comments will be reviewed under the plain error doctrine to determine whether the comments clearly or obviously raise a reasonable doubt concerning the judge’s impartiality).

United States v. Gray, 51 MJ 1 (comments by the military judge, made outside the presence of the members, are individually analyzed, and the CAAF finds no abandonment by the military judge of his impartial role, no bias, no partiality, no flippant insult to defense counsel, and no evidence of bias in a ruling denying admission of evidence on relevance grounds). 



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