IN THE CASE OF
Wade L. WALKER, Lance Corporal
UNITED STATES, Respondent
Crim. App. No. 9501607
EFFRON, J., delivered the opinion of the Court, in which GIERKE, C.J., CRAWFORD, BAKER, and ERDMANN, JJ., joined.
For Petitioner: Lieutenant Jason S. Grover, JAGC, USN (argued); Lieutenant Michael J. Navarre, JAGC, USNR, and Hardy Vieux, Esq. (on brief).
For Respondent: Captain Glen R. Hines, USMC (argued); Lieutenant Colonel William K. Lieutzau, USMC (on brief).
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
Judge EFFRON delivered the opinion of the Court.
At a general court-martial composed of officer members, Petitioner was convicted, contrary to his pleas, of two specifications of conspiracy, two specifications of violating a base order, two specifications of premeditated murder, one specification of felony murder (later dismissed), one specification of robbery, one specification of adultery, and one specification of kidnapping, in violation of Articles 81, 92, 118, 122 and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 881, 892, 918, 922, and 934. He was sentenced to death, forfeiture of all pay and allowances, and reduction to E-1. The convening authority approved the sentence as adjudged. The case is pending review at the United States Navy-Marine Corps Court of Criminal Appeals.
Petitioner has requested that our Court provide extraordinary relief in the nature of a writ of mandamus and a writ of prohibition under 28 U.S.C. § 1651(a) on the following two issues:
WHETHER APPELLANT [PETITIONER] IS ENTITLED TO A NEW STAFF JUDGE ADVOCATE’S RECOMMENDATION AND CONVENING AUTHORITY’S ACTION WHERE THE SJA WHO PREPARED THE REVIEW WAS DISQUALIFIED BECAUSE THE ATTORNEY REPRESENTING THE U.S. GOVERNMENT IN APPELLANT’S CASE SUBSTANTIALLY PARTICIPATED IN PREPARING THE SJA’S RECOMMENDATION.
WHETHER UNDER ARTICLE 66(A), UCMJ, THE PANEL REVIEWING THE PETITIONER’S CASE IS PROPERLY ASSIGNED, AND WHETHER THERE CAN BE TWO CHIEF JUDGES OF THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS.
For the reasons set forth below, we grant the petition for extraordinary relief in part. The court below may proceed with review of Petitioner’s court-martial, provided that such review is conducted by a panel to which judges have been assigned by a judge designated by the Judge Advocate General to serve as chief judge in Petitioner’s case. In all other respects, the petition for extraordinary relief is denied without prejudice to further consideration in the normal course of appellate review.
I. PROCEDURAL BACKGROUND
this capital case, the convening authority approved the adjudged
the initial review of the case, the Court of Criminal Appeals, acting
Panel 3, set aside the convening authority’s action and remanded the
post-trial action by a different convening authority.
the next five years, the composition of Panel 3 changed at various
times. As a result of these changes and
of several judges, the panel had only one participating member, Judge
when it issued an order on
typical circumstances, the deficiency resulting from lack of a quorum
have been readily rectified by the chief judge of the Court of Criminal
Appeals. Under Article 66(a), UCMJ, 10
U.S.C. § 866(a), the chief judge could have filled the panel vacancies
assigning non-disqualified judges to sit on the panel.
If the court as a whole did not have a
sufficient number of non-disqualified judges to fill the panel, the
Advocate General could have appointed additional judges for service on
court, see United States v. Morgan, 47 M.J. 27, 29
1997), and the chief judge then could have filled the panel with
non-disqualified judges under Article 66(a).
In the present case, however, the chief judge had disqualified himself
involvement in the present case due to his prior role in the litigation
Director of the Appellate
Government Division. See
to Petitioner’s motion for reconsideration, the Clerk of Court of the
Criminal Appeals notified the Judge Advocate General on
Citing Canon 2A of the American Bar Association Model Code of Judicial Conduct, the Clerk further noted that it would be inappropriate for the chief judge -- who had recused himself from the case -- to designate members of the panel. The Clerk observed that such an action would not be consistent with the admonition of Canon 2A against taking actions that do not promote “public confidence in the integrity and impartiality of the judiciary.”
Consequently, the Judge Advocate General issued a memorandum to Judge Villemez on March 25, entitled “Designation of Chief Judge, Navy-Marine Corps Court of Criminal Appeals,” which contained the following:
1. Pursuant to [Article 66, UCMJ], you are hereby designated as Chief Judge, Navy-Marine Corps Court of Criminal Appeals, for the cases of United States v. Lance Corporal Walker and United States v. Lance Corporal Kenneth G. Parker [a companion case] only. You will determine, as appropriate, a panel of qualified appellate judges to consider said cases. You will designate, again as appropriate, a senior judge for any panel created.
2. Your designation is as a direct result of the current Chief Judge, Colonel W. Charles Dorman, USMC, being recused from said cases. Given Colonel Dorman’s recusal, there is no Chief Judge with regard to these cases.
3. Your designation as Chief Judge is limited to said cases and associated responsibilities. Your designation shall not interfere with the duties of Colonel Dorman as he exercises his responsibilities as Chief Judge for all other cases before the court.
4. Your designation is effective immediately. You will be relieved of duty as Chief Judge for said cases upon the earlier of your detachment from the court, or the assignment of another appellate judge eligible to make such panel assignments for said cases.
Judge Advocate General’s memorandum
apparently was not received by the court until
the court received the Judge Advocate General’s letter on April 13,
Villemez exercised his newly-granted authority to determine a panel for
Petitioner’s case and issued a memorandum on April 14 entitled “Panel
assignments in the case of
Navy subsequently announced that Judge Villemez would retire on
A. COMPOSITION OF THE PANEL
AT THE COURT OF CRIMINAL APPEALS
66(a), UCMJ, which governs the composition of the Courts of Criminal
assigns one set of responsibilities to the Judge Advocate General and a
distinct set of responsibilities to the chief judge of the court. Under the Article, each Judge Advocate General
performs two primary duties. First, the
Article requires each Judge Advocate General to “establish a Court of
Appeals which shall be composed of one or more panels . . . [each of
shall be composed of not less than three appellate military judges.” Article 66(a), UCMJ.
Second, the Article requires the Judge Advocate General to
chief judge one of the appellate military judges of the Court of
Appeals . . . .”
the court is established and the chief judge is designated,
assignment of judges within the court is vested by statute in the chief
judge. “The chief judge shall
determinate on which panels of the court the appellate judges assigned
court will serve and which military judge assigned to the court will
act as the
senior judge on each panel.”
The statute does not provide expressly for a judge to perform the duties of the chief judge when the chief judge is absent or recused. The joint rules for the Courts of Criminal Appeals, promulgated under Article 66(f), 10 U.S.C. § 866(f), are likewise silent on this matter. See Courts of Criminal Appeals Rules of Practice and Procedure, 44 M.J. LXIII-LXXX (1996). Until the problem with recusal arose in the present case, the Navy-Marine Corps Court of Criminal Appeals did not have any applicable internal rule.
Petitioner contends that when Chief Judge Dorman recused himself from acting in Petitioner’s case, the Judge Advocate General was not authorized to designate Judge Villemez to serve as the chief judge with respect to Petitioner’s case. Petitioner asserts that because Article 66(a) permits only “one” person to be designated as chief judge, the designation of Judge Villemez impermissibly produced “more than one” chief judge.
According to Petitioner, the responsibility for panel assignments should have been exercised directly by the Judge Advocate General. In taking that position, Petitioner would have us rigidly interpret one portion of Article 66(a) by narrowly applying the provision authorizing the Judge Advocate General to designate “one” chief judge. At the same time, Petitioner would have us loosely interpret another portion of the statute by overlooking the requirement in the same rule that identifies the chief judge, not the Judge Advocate General, as the official responsible for panel assignments. Petitioner has not offered a persuasive basis for the suggestion, inherent in his argument, that we should apply such inconsistent approaches to interpret different provisions within the same statute.
Recusal in the event of a conflict of interest is a critical element in assuring public confidence in the fairness of the administration of justice. While courts typically have either statutory or internal procedures to designate an acting chief judge when the chief judge is recused, see, e.g., Article 143(a)(5), UCMJ, 10 U.S.C. § 943(a)(5), the absence of such a procedure does not preclude an appropriate authority from ensuring the continuity of a court’s operations in the event of the chief judge’s recusal.
Petitioner acknowledges that the functions of the chief judge must be performed by another official because the Court of Criminal Appeals would otherwise be brought to a halt when action by the chief judge is required in a case or series of cases from which the chief judge is recused. Petitioner suggests that those functions should be performed by the Judge Advocate General, but he has not provided us with a persuasive reason for concluding that Congress intended that the Judge Advocate General directly perform a critical function -- assignment of a judge to a panel to hear a specific case -- that is committed to the chief judge by the text of the statute. The structure of the statute reflects a congressional preference for a division of responsibilities between the Judge Advocate General and the chief judge of the Court of Criminal Appeals. This preference is best furthered by concluding: (1) that the Judge Advocate General may perform the function assigned to that officer under Article 66(a) -- designating an appellate military judge as chief judge -- for a particular case or cases to fill the void caused by the recusal of the regularly serving chief judge; and (2) that the person serving as chief judge for a case or series of cases may perform in those cases the function assigned to the chief judge under Article 66(a) -- assigning judges to serve on the panel or panels that will hear those cases.
the chief judge of the Court of Criminal Appeals promulgated a policy
When a judge is recused, the judge should not take action to influence the appointment of his or her replacement. See Richard E. Flamm, Judicial Disqualification: Recusal and Disqualification of Judges, § 22.3 (1996). A chief judge is not necessarily disabled from issuing generally applicable rules that affect a wide range of cases before the court, even if the rule happens to apply to a case in which the chief judge is recused. If, however, the rule will be applied only in that case or a readily identifiable set of cases in which the chief judge is recused, the rule must be drafted or applied in a manner that preserves the effect of the recusal. Otherwise, the recusal will not serve the function of Canon 2A of the Model Code of Judicial Conduct with respect to promoting “public confidence in the integrity and impartiality of the judiciary.” The fact that the court in the spring of 2004 did not utilize the chief judge’s succession policy in the present case ensured that the policy would not be applied in a manner that would undermine the effect of the recusal.
Although the court properly relied on the Judge Advocate General to select a chief judge for Petitioner’s case in the spring of 2004, the court did not follow that approach when Judge Villemez -- the acting chief judge selected by the Judge Advocate General -- retired several months later. Instead, the Clerk of Court stated that the court would rely on Chief Judge Dorman’s memorandum to select an acting chief judge for the present case, an action that the court would have implemented but for the stay issued by our Court. Reliance on the succession policy was impermissible under the circumstances of this case. The chief judge, whose recusal remained in place, promulgated the policy in the midst of the litigation from which he was recused, and the impact on that litigation was readily identifiable.
The Government has not established the necessity of requiring reliance on the chief judge’s memorandum now, when it was not necessary for the court do so earlier in the year. A readily available procedure for appointment of a chief judge is available -- designation by the Judge Advocate General. That procedure, which was used earlier in the year, remains available to move this case forward.
The Government suggests that issuance of the writ is not necessary and that the case may proceed without the assignment of an additional judge because participation by the two remaining judges will establish a quorum. See Lee, 54 M.J. at 286-87. Panel composition, however, is a responsibility committed to the judiciary, not the parties. According to the Clerk of Court, the Court of Criminal Appeals, which has not yet conducted significant proceedings on the merits of the pending appeal, anticipated proceeding with a full, three-judge panel.
To date, the Court of Criminal Appeals has not received briefs from the parties on the merits of the findings and sentence adjudged by the court-martial. The review, in this capital case, is likely to require a significant commitment of time and effort by that court. It would make little sense for the Court of Criminal Appeals to undertake the intensive review required in a capital case all the while knowing that the composition of the court -- an even number of judges -- could produce a decision, upon completion of review, in which the court would be equally divided on the findings or the sentence or both. The plan of the Court of Criminal Appeals, as described by the Clerk of Court, to proceed with a full panel recognizes that it would not be desirable to proceed with a two-judge panel, and we need not address whether it would be appropriate for the court to do so in the present posture of this litigation.
Review under Article 66 is a critical element in achieving finality in court-martial proceedings. Consideration of a case by a panel composed of properly assigned appellate judges is an essential prerequisite to the conduct of appellate review under Article 66. Petitioner’s case currently is pending Article 66 review before a court lacking a properly designated official who can perform the functions of the chief judge in making panel assignments. This is an extraordinary circumstance which directly and adversely affects the normal course of appellate review. Issuance of an extraordinary writ by our court is essential to ensure that Petitioner’s case is before a panel authorized to conduct the normal course of appellate review.
B. REVIEW OF FINDINGS AND SENTENCE
Petitioner also has challenged the propriety of the most recent action taken by the convening authority. Alleged errors in the recommendations of a staff judge advocate or actions of a convening authority are considered routinely in the appellate process. Petitioner has not demonstrated the necessity for addressing this assignment of error through an extraordinary writ.
motion for extraordinary relief is granted in part.
Assignment of judges to the panel reviewing
Petitioner’s court-martial shall not be made by or under the direction
chief judge recused from this case. The
Judge Advocate General shall designate an appellate military judge to
the functions of the chief judge in view of the chief judge’s recusal
present case. After such a judge is
designated to perform the duties of the chief judge,
and upon the assignment of non-disqualified appellate judges to the
panel by that designated chief judge, the stay is lifted and the court
proceed with review of Petitioner’s court-martial.
Any issue as to whether a prior action of the
court below was taken by a properly designated panel, or whether such
otherwise should be reconsidered, shall be decided, in the first
the court below. Any further question as
to whether a prior or future panel in the present case was designated
also shall be decided, in the first instance, by the court below. In all other respects the petition is denied
without prejudice to further consideration of the issues stated therein
the normal course of appellate review.