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Tim Bilecki

Military Judge Recusal – Intemperate Comments

Jul 23, 2011
In United States v. Kirk, No. Misc. 20100443 (A. Ct. Crim. App. July 28, 2010) (unpublished) the Government initially filed an Article 62 appeal, challenging the military judge’s decision to suppress the accused’s statements based on a violation of Article 31(b), UCMJ. The ACCA reversed the military judge’s ruling on the suppression issue and then (on its own accord) commented on the possible recusal of the military judge from further proceedings in the case.

In ruling on the motion to suppress, the military judge noted the Government could appeal his decision but added, “I do not expect to get overturned on this issue.” The military judge continued: “[I]f this case does come, you know, back three or four months from now I will be the military judge in the case . . . that is going to hear the facts in the future including the [first sergeant]’s testimony if they believe the statements should be admissible. But if you want to appeal you are welcome to. Is that your final decision, Government? I just want to make sure.”

The ACCA found that these “gratuitous comments” called into question the perception of fairness and impartiality of the military judge. The court noted that R.C.M. 902(a) directs recusal when a military judge’s “impartiality might reasonably be question.” (emphasis added by the court). While the ACCA did not actually determine the military judge should be recused, the court opined “his comments suggest he prejudged the government’s evidence, and intimated the futility of appealing his decision in light of his anticipated role as ultimate fact finder.” The court concluded: “We find his comments intemperate, injudicious, and inconsistent with the impartial role he is to play in the court-martial, creating at least the perception of unfairness to the parties, potentially undermining public confidence in his judicial role.”

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