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Tim Bilecki

Military Judge Recusal

Jul 21, 2011
R.C.M. 902(a) provides “a military judge shall disqualify himself or herself in a proceeding in which that military judge’s impartiality might reasonably be questioned.” R.C.M. 902(e) allows parties to waive any ground for challenge predicated on this subsection. By contrast, R.C.M. 902(b) provides five non-waivable (and rare) grounds for challenge.

The Discussion to R.C.M. 902(d)(1) directs a military judge to “broadly construe grounds for challenge” but not to “step down from a case unnecessarily.” On appeal, a military judge’s decision regarding recusal will be reviewed for an abuse of discretion. In United States v. Roach, 69 M.J. 17 (C.A.A.F. 2010) the accused’s case was originally affirmed by an Air Force Court of Criminal Appeals panel that included the chief judge. The case went to the CAAF and was remanded back to the AFCCA. While the initial CAAF review was pending, the AFCCA chief judge commented about the case at two public events. Following a motion by the defense, the chief judge recused himself from the case. The chief judge then sent an e-mail to the executive officer for the Air Force TJAG recommending that a specific judge be appointed to replace the chief judge on the case. The Air Force TJAG appointed this judge, who then convened the panel that considered the remanded case. In a unanimous decision authored by Judge Baker, the CAAF vacated the AFCCA decision and remanded for new Article 66 review, finding the chief judge improperly took action in the case after recusal when he recommended his replacement.

The CAAF observed three reasons the chief judge’s actions were improper: (1) he took a procedural step after his recusal, creating the appearance of directly impacting a case from which he was recused; (2) the replacement appellate judge authored the court’s opinion; and (3) perceptions of impartiality are greater when an appellate court is required to review the actions of a panel of the same court. Applying Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847 (1988), the CAAF found the error was not harmless.

The three Liljeberg factors are (1) risk of injustice to the parties in the case, (2) risk that the denial of relief will result in injustice in other cases, and (3) the risk of undermining public confidence in the judicial process. The CAAF found the third factor was dispositive, as the public’s confidence in the military justice process is undermined when judges take action in cases after being recused.

The court noted the perception issue is particularly important in the military justice system: “From an outsider’s perspective, it might well appear that at a court-martial and at the CCA, the critical players are invariably uniformed officers, usually if not always from the same service, and in many cases drawn from what are relatively small communities of military judge advocates. In this context, it is all the more important for participants to engage in their assigned duties without blurring legal and ethical lines; however well intentioned.” (citing United States v. Greatting, 66 M.J. 226, 232 (C.A.A.F. 2008)). The CAAF observed “[E]ither a military judge is recused or he is not.” Once recused, a judge shall not take further action in a case. If a military judge deviates from this requirement, “no matter how minimally,” it “may leave a wider audience to wonder whether the military judge lacks the same rigor when applying the law.”

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