United States v. Davis, NMCCA 200900406 (N-M. Ct. Crim. App. Dec. 15, 2009) (per curiam) (unpublished) deals with military judge questioning witnesses. Accused pled guilty to conspiring to steal and sell military property and other offenses related to the larceny of live military ordnance. During the sentencing phase of trial, Government called a witness to testify about how the accused's conviction would affect his Military Occupational Specialty (MOS). During trial counsel's questioning, the defense counsel objected that a proper foundation had not been laid for the witness. The military judge sustained the objection and suggested the trial counsel inquire about "how the witness knows about his MOS I guess, the accused's MOS." The court noted the witness seemed confused by the defense objection and seemed to be responding the objection rather than the trial counsel's questions. The military judge then asked "11 foundational questions" with no objection from defense counsel. On appeal, defense argued the military judge abandoned his impartial role. The N-MCCA rejected the defense argument, noting strong presumption that a military judge is impartial (citing United States v. Quintanilla, 56 M.J. 37, 44 (C.A.A.F. 2001)) and that the test on appeal for military judge recusal is whether the record taken as a whole cause a reasonable person to doubt the legality, fairness, and impartiality of the proceedings based on the military judge's questions (citing United States v. Ramos, 42 M.J. 392, 396 (C.A.A.F. 1995)). Here, the military judge's questions "benign foundational matters" only asked after the witness provided an "unresponsive answer" to one of trial counsel's question. The court also noted the rest of the record shows the military judge was impartial, including his decisions to dismiss charge sua sponte and to consider two specifications as one offense for sentencing.
United States v. Lee, NMCCA 200600543 (N-M. Ct. Crim. App. Nov. 10, 2009) (unpublished) deals with the judge having extra judicial knowledge of contested facts. The accused's case was remanded for a DuBay hearing to determine if his detailed defense counsel failed to disclose a conflict of interest, specifically that the defense counsel was going to become a trial counsel the month after the court-martial. At the hearing, defense counsel made a motion for the military judge to recuse himself. The military judge had been the military justice officer of the LSSS Camp Lejeune when the accused's defense counsel became a trial counsel and, in that capacity, handled the post-trial processing of the accused's case. The N-MCCA unanimously held the military judge was "mandatorily disqualified" because of his personal knowledge gained of the case in an extra-judicial capacity. The military judge was in a position as the military justice officer to acquire "detailed and exclusive knowledge" of the defense counsel's actions the months following the courtmartial. This information would have been obtained in a "purely extra-judicial capacity." The actions of the defense counsel are disputed facts at issue in the DuBay hearing, so the military judge is must necessarily be recused.