MILITARY JUSTICE PERSONNEL: Military Judge: Generally

2022 (October Term)

United States v. Cunningham, 83 M.J. 367 (military judges are presumed to know the law and follow it absent clear evidence to the contrary). 

(a military judge understands that emotions cannot enter the final determination of a sentence). 

United States v. Vargas, 83 M.J. 150 (a ruling by a military judge may be affirmed if the ruling reached the correct result for the wrong reason). 

2020 (October Term)

United States v. Tyler, 81 M.J. 108 (if a military judge arrives at the correct result, even if for the wrong reason, an appellate court may affirm the ruling). 

(although the military judge erred in his reasoning that the trial counsel could comment on the contents of the unsworn victim statement admitted under RCM 1001A (now 1001(c)) simply because they could have been admitted as substantive evidence under RCM 1001(b)(4), such error was harmless because either party may comment on properly admitted unsworn victim statements under RCM 1001A (now 1001(c))). 

United States v. Uribe, 80 M.J. 442 (the validity of the military justice system and the integrity of the court-martial process depend on the impartiality of military judges in fact and in appearance; therefore, actual bias is not required; an appearance of bias is sufficient to disqualify a military judge). 

(in the military context, the appearance of bias principle is derived from RCM 902(a); this rule provides that a military judge shall disqualify himself or herself in any proceeding in which that military judge’s impartiality might reasonably be questioned; the test for identifying an appearance of bias is whether a reasonable person knowing all the circumstances would conclude that the military judge’s impartiality might reasonably be questioned; this is an objective standard; recusal based on an appearance of bias is intended to promote public confidence in the integrity of the judicial process; but this appearance standard does not require judges to live in an environment sealed off from the outside world; indeed, personal relationships between members of the judiciary and participants in the court-martial process do not necessarily require disqualification; however, the existence of a social relationship creates special concerns which a professional relationship does not).

(military judges should be especially circumspect in deciding whether to disqualify themselves in deciding a joint recusal motion). 

(the proper focus of an inquiry into the appearance of bias between a military judge and a party is whether the relationship between the judge and party raises special concerns, whether the relationship was so close or unusual as to be problematic, and/or whether the association exceeds what might reasonably be expected in light of the normal associational activities of an ordinary military judge). 

2018 (October Term)

United States v. Bodoh, 78 M.J. 231 (in this case involving an allegation of sexual assault, where trial counsel erred when questioning appellant by asking a series of clearly impermissible questions founded on the false premise that a person who is intoxicated is inherently incapable of consenting to sexual acts, the military judge fully cured trial counsel’s error by (1) sustaining the defense’s objection to the questioning, (2) ruling that trial counsel had misstated the law, and (3) properly summarizing the law by stating that there was nothing that says a person cannot have sex with somebody who has taken alcohol or a cough and flu medication; in light of the military judge’s curative measures, appellant failed to establish that trial counsel’s improper questioning was prejudicial). 

2015 (September Term)

United States v. Witt, 75 M.J. 380 (the terms “disqualification” and “recusal” for a judge are closely related; whereas disqualification refers to the basis for a judge not to be able to sit on a case, “recusal” refers to the judge’s refusing to sit on grounds of disqualification).

United States v. Rapert, 75 M.J. 164 (military judges are presumed to know the law and to follow it absent clear evidence to the contrary). 

2012 (September Term)

United States v. Salyer, 72 M.J. 415 (the normative method for challenging a military judge’s legal ruling is to seek an appeal of that ruling; this might be done on an interlocutory basis, and generally the appeal will be given precedence by an appellate court; the normative method for addressing a military judge’s substantive ruling is not to seek a military judge’s disqualification and get a new ruling from a replacement military judge; and, it is not to have the government communicate in an ex parte manner with the military judge’s judicial supervisor and express displeasure with the ruling). 

2010 (September Term)

United States v. Phillips, 70 M.J. 161 (when sitting as the trier of fact, the military judge is presumed to know the law and apply it correctly). 

United States v. McMurrin, 70 M.J. 15 (the military judge clearly erred when he found negligent homicide to be an LIO of involuntary manslaughter).

2009 (September Term)

United States v. Ediger, 68 M.J. 243 (military judge properly adopted his predecessor’s earlier determination that testimony regarding appellant’s prior molestation of another child was admissible under MRE 414, despite the fact that the government dismissed an indecent liberties charge alleging that appellant masturbated in front of the child victim, where the government did not dismiss a corresponding false official statement specification which charged that he had made a false official statement that he had never masturbated in the victim’s presence; because the same conduct raised in the dismissed charge, alleged masturbation in front of the victim, remained at issue in appellant’s court-martial despite the government’s dismissal of the indecent liberties charge, the analysis undertaken by the predecessor judge was still relevant and applicable despite the government’s dismissal of the indecent liberties charge). 

2008 (September Term)

United States v. Matthews, 68 M.J. 29 (given the plain meaning of the word “courts,” it is reasonable to conclude that MRE 509, creating a privilege for “deliberations of courts and grand and petit juries,” applies to military judges). 

(consistent with MRE 101, and the text of MRE 509 itself, and in light of the prevailing federal common law rule that the deliberative process of judges is protected from disclosure, MRE  509, creating a privilege for “deliberations of courts and grand and petit juries,” protects the deliberative process of military judges from disclosure). 

(a military judge’s deliberative process should generally be free from consideration in post-judgment proceedings because (1) the prohibition against compelling the testimony of a judge is to protect the integrity of the legal system itself, (2) such testimony threatens the finality of judgments, (3) deliberative process testimony disrupts one of the basic tenants of evidentiary law – reliability,  (4) the concerns surrounding deliberative process testimony are compounded because a judge’s testimony regarding his own deliberations is essentially irrebuttable, and (5) the medium for evaluating a military judge’s reasoning is the record of trial, not a post-trial DuBay factfinding hearing). 

(it is well-settled law that testimony revealing the deliberative thought processes of judges is inadmissible). 

(the portions of a trial military judge’s post-trial DuBay factfinding hearing testimony in which he explained his deliberative process and reasoning at a court-martial were unreviewable evidence that could not be considered by a Court of Criminal Appeals). 

(the federal common law protection of the deliberative processes of judges is incorporated into military law through MRE 509, and encompasses military judges sitting alone; although the term “privilege” in this context is ambiguous, it is interpreted in a manner consistent with federal common law, and thus also in a manner consistent with both MRE 509 and MRE 101). 

United States v. Wiechmann, 67 M.J. 456 (because a military judge is not appointed to conduct proceedings until charges are referred to a court-martial, the military justice system does not have standing courts at the trial level to address legal issues at the pre-referral stage; the convening authority exercises responsibility for pretrial matters that would otherwise be litigated before a judge in civilian proceedings, including issues involving the conduct of depositions, issuance of protective orders, availability of government-funded experts, mental responsibility proceedings, and questions concerning the validity of charges). 

United States v. Sanders, 67 M.J. 344 (as the sentencing authority, a military judge is presumed to know the law and apply it correctly, absent clear evidence to the contrary). 

United States v. Riddle, 67 M.J. 335 (a military judge can presume, in the absence of contrary circumstances, that the accused is sane and, furthermore, that counsel is competent).

United States v. Bragg, 66 M.J. 325 (an appellate court gives a military judge great deference when deciding whether actual bias exists because it is a question of fact, and the judge has observed the demeanor of the challenged member; a military judge is afforded less deference when an appellate court reviews a challenge for cause based on implied bias because the issue is objectively viewed through the eyes of the public, focusing on the appearance of fairness; thus, issues of implied bias are reviewed under a standard less deferential than abuse of discretion but more deferential than de novo; however, a military judge who addresses implied bias by applying the liberal grant mandate on the record will receive more deference on review than one that does not; an appellate court does not expect record dissertations but, rather, a clear signal that the military judge applied the right law; while not required, where the military judge places on the record his analysis and application of the law to the facts, deference is surely warranted). 

(in the context of implied bias, a military judge need not doubt the sincerity or veracity of a member’s statements that he could evaluate the evidence with an open mind, in order to nonetheless conclude that the member should not sit; it is not always possible to resolve facts or determine credibility and still remove the perception of doubt as to whether a member should sit; implied bias and the liberal grant mandate allow a military judge to uphold the letter and spirit of RCM 912 without at the same time questioning a member’s statement that he can sit with an open mind). 

(military judge erred in denying defense challenge for cause of a senior member on the panel who indicated during voir dire that he was aware of information about the case not available to the other members and from a source not readily available to others, and who suggested that prior to trial, it was likely that he would have been in a position to recommend, and may have recommended adverse administrative action against the accused, for conduct forming the basis of the charges before the court-martial; the liberal grant mandate exists for cases like this; viewing the factual circumstances objectively, a member of the public would have substantial doubt that it was fair for this member to sit on a panel where that member had likely already reached a judgment as to whether the charged misconduct occurred; this perception of unfairness is compounded when that member has likely reached such a conclusion based on information gained prior to trial).  

United States v. Inabinette, 66 M.J. 320 (a military judge abuses his discretion if he accepts a guilty plea without an adequate factual basis to support the plea - an area in which an appellate court affords the judge significant deference; additionally, any ruling based on an erroneous view of the law also constitutes an abuse of discretion).

United States v. McIlwain, 66 M.J. 312 (an accused has a constitutional right to an impartial judge). 

 
(it is well-settled in military law that the military judge is more than a mere referee; the military judge is the presiding authority in a court-martial and is responsible for ensuring that a fair trial is conducted; the judge has broad discretion in carrying out this responsibility, including the authority to call and question witnesses, hold sessions outside the presence of members, govern the order and manner of testimony and argument, control voir dire, rule on the admissibility of evidence and interlocutory questions, exercise contempt power to control the proceedings, and, in a bench trial, adjudge findings and sentence; in these roles, the impartiality of a presiding judge is crucial, for the influence of the trial judge on the members is necessarily and properly of great weight, and members are ever watchful of the words that fall from him; particularly in a criminal trial, the judge’s last word is apt to be the decisive word). 

 
(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. Bridges, 66 M.J. 246 (as the sentencing authority, a military judge is presumed to know the law and apply it correctly absent clear evidence to the contrary). 

United States v. Greatting, 66 M.J. 226 (an accused has a constitutional right to an impartial judge). 

(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). 

United States v. Mackie, 66 M.J. 198 (a military judge abuses his discretion when the findings of fact upon which he predicates his ruling are not supported by the evidence of record, if incorrect legal principles were used, or if his application of the correct legal principles to the facts is clearly unreasonable). 

(the military judge abused his discretion in this case by denying the defense request for a sanity board, where the trial defense counsel detailed concerns that because of the accused’s memory loss, he might not be able to assist in his own defense, might not be fit to stand trial, and that similar memory loss may have occurred during the alleged misconduct, where the accused submitted an affidavit detailing specific instances of blackouts and memory loss over a six-month period, and where the opinions of the accused’s treating clinical psychologist in the form of a stipulation of expected testimony were not an adequate substitute for a sanity board; this psychologist had seen the accused twice by appointment and once for a brief walk-in conversation, never conducted a forensic examination or participated in a sanity board, and was unaware of the accused’s claimed memory losses and blackouts). 

(where the issues of mental responsibility and competency were raised by the accused’s motion for a sanity board and with no indication that the motion was made in bad faith or was frivolous, the military judge should have granted the motion; even assuming a medical examination by a qualified physician could take the place of a sanity board, the stipulation in this case, which failed to provide the specific substantive information required under RCM 706(c), was a legally erroneous basis upon which to deny the motion). 

2007

United States v. Moran, 65 M.J. 178 (military judges, unlike lay members, are presumed capable of filtering out inadmissible evidence).

2006

(both the accused and the government are permitted to question the military judge and to present evidence regarding a possible ground for disqualification; should grounds arise, the military judge shall disqualify himself or herself in any proceeding in which that military judge’s impartiality might reasonably be questioned).

United States v. Hill, 62 M.J. 271 (MRE 606(b) does not apply to military judges; an extra-judicial statement by a military judge may be given appropriate consideration on appeal, subject to certain qualifications).

(as a general matter, military judges are presumed to know the rules of evidence and to consider testimony only for permissible purposes; that presumption is strengthened by the prompt action of a trial judge, which expressly cuts off and rejects questionable testimony; just as it is presumed that the members follow the instructions of the military judge, it is also presumed that a military judge adheres to his own evidentiary rulings). 

2000

United States v. Robbins, 52 MJ 455 (a military judge is presumed to know the law and apply it properly, is presumed capable of filtering out inadmissible evidence, and is presumed not to have relied on such evidence on the question of guilt or innocence).

United States v. Norfleet, 53 MJ 262 (military judges are expected to render decisions that may adversely impact on their superior officers; such decisions by the military judiciary are essential to the maintenance of a military justice system that not only is fair, but that also is perceived to be fair by members of the armed forces and the public).

1999

United States v. Williams, 50 MJ 397 (the military judge may be presumed to know about law and precedent, and be presumed to have afforded an accused his rights under them).