U.S. v. Jones, 55 M.J. 317

Military Justice Personnel: Military Judge: Qualifications and Appointment of

1. 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
2. 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
3. Title 28 USC § 455 governs the recusal of judges and is applicable to cases involving the actions of appellate military judges
4. 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
5. 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
6. 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

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. a trial or appellate judge’s decision on recusal is reviewed for abuse of discretion; however, when an appellant does not raise the issue of disqualification until appeal, the reviewing court examines the claim under the plain error standard of review