2020 (October Term)
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).
(in this case, the military judge failed to recognize that his friendship with the trial counsel raised special concerns where he had formed a close personal bond that transcended the routine personal and professional relationships commonly found between a military judge and a party who appears before that military judge; as a result, based not only on the frequency of their contact but also on the nature of the relationship, the judge abused his discretion when he denied a joint recusal motion from both trial and defense counsel; simply stated, granting this motion was necessary in order to maintain public confidence in the integrity and fairness of the military justice system because the judge’s impartiality in this case could reasonably be questioned).
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).
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)).