U.S. v. Quintanilla, 56 M.J. 37

Military Justice Personnel: Prosecution Function: Trial Counsel

1. trial counsel’s responsibilities include the duty to obtain the presence of witnesses for both the prosecution and the defense, including the issuance of military orders for active duty witnesses and subpoena’s for civilians

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. the military judge is the presiding authority in a court-martial and is responsible for ensuring that a fair trial is conducted

Military Justice Personnel: Military Judge: General Powers

1. a military judge does not exercise general jurisdiction over cases arising under the UCMJ; a military judge may exercise authority only over the specific case to which he or she has been detailed
2. a military judge may issue a warrant of attachment to compel the presence of a civilian witness, but only under very specific circumstances as set forth in RCM 703(e)(2)(G)(ii); military judges do not have the power to treat non-compliance with a subpoena as a contempt of court

Military Justice Personnel: Military Judge: Conduct/Misconduct

1. the ABA Model Code of Judicial Conduct and the ABA Standards for Criminal Justice provide guidance on the proper conduct of criminal trials and are the standards to which judges should aspire
2. the standards applicable to military judges are enforced primarily through disciplinary action and advisory opinions; actions that violate codes of conduct do not necessarily provide a basis either for disqualification of a judge or reversal of a judgment unless otherwise required by applicable law
3. a military judge shall perform the duties of judicial office impartially and diligently, including requirements that the judge "be patient, dignified and courteous to litigants, jurors, witnesses, lawyers, and others" and that the "judge shall not . . . by words or conduct manifest bias or prejudice." ABA Model Code of Judicial Conduct (2000 ed.), Canon 3, Sections B(4) and B(5)
4. an accused has a constitutional right to an impartial judge
5. in carrying out his or her duties: a military judge must avoid undue interference with the parties’ presentations or the appearance of partiality; the military judge must exert his or her authority with care, so as not to give even the appearance of bias for or against either party; the military judge is charged with ensuring the dignity and decorum of the proceedings and conducting trials in an atmosphere which is conducive to calm and detached deliberation and determination of the issues presented
6. impartiality does not mean that the military judge should act simply as an umpire in a contest between the Government and the accused; the judge fulfills a complex role, exercising evenhanded control over the proceedings without veering, or appearing to veer, to far to one side of the other
7. actions taken in the course of a trial may warrant disqualification of the military judge where it can be shown that such bias was either directed against a party or its counsel, or in favor of the adverse party or counsel, or that the challenged judge, in order to compensate for the appearance of such a bias, has bent over backwards to make it seem as though he has not acted as a result of such bias
8. there is a strong presumption that a judge is impartial, and a party seeking to demonstrate bias must overcome a high hurdle; remarks, comments, or rulings of a judge do not constitute bias or partiality unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible
9. military judge should steer clear of circumstances that would demonstrate bias or the appearance of bias including ex parte communications on the merits, or procedures affecting the merits, or a pending or impending proceeding
10. the fact of an ex parte communication alone does not mandate disqualification, particularly if the record shows that that conversation did not involve substantive issues or evidence favoritism to one side – a decision on disqualification will depend upon: (1) the nature of the communication; (2) the circumstances under which it was made; (3) what the judge did as a result of the ex parte communication; (4) whether it adversely affected a party who has standing to complain; (5) whether the complaining party may have consented to the communication being made ex parte and, if so, whether the judge solicited such consent; (6) whether the party who claims to have been adversely affected by the ex parte communication objected in a timely manner; and (7) whether the party seeking disqualification properly preserved its objection
11. the disqualification standards of RCM 902 parallel the statute governing disqualification of federal civilian judges, 28 USC § 455; the standards developed in federal civilian courts, as well as military case law, are considered when addressing disqualification issues arising under RCM 902
12. RCM 902 divides the grounds for disqualification into two categories: (1) RCM 902(b) lists five specific circumstances connoting actual bias; and (2) RCM 902(a) addresses the appearance of bias requiring disqualification of a military judge when that military judge’s impartiality might reasonably be questioned
13. the appearance of bias requiring disqualification of a military judge when that military judge’s impartiality might reasonably be questioned is designed to enhance public confidence in the integrity of the judicial system and to reassure the parties as to the fairness of the proceedings
14. counsel may move for the disqualification of a military judge, but military judges also have a continuing duty to recuse themselves if any of the bases of disqualification under RCM 902 develop
15. of all the grounds for disqualification in RCM 902, only the appearance of bias may be waived, RCM 902(a), after full disclosure of the basis on the record. RCM 902(e)
16. a judge’s decision on the issue of disqualification is reviewed for abuse of discretion
17. because the military judge did not ensure that the record reflected a full disclosure as required by RCM 902(e), court found it inappropriate to conclude on the present state of the record that the defense counsel waived the appearance of bias disqualification in this case – specifically, the record was deficient in the following respects: (1) the military judge never disclosed an ex parte conversation with trial counsel about the timing of a witness’s testimony; (2) the military judge failed to provide a complete description of his out-of-court confrontations with a witness; (3) what description there is was not coherent and made it difficult to determine precisely what happened during the confrontations; and (4) the judge put the witness on the stand and questioned him in a manner that minimized the disclosure of information about the events
18. when a military judge’s impartiality [appearance of bias] is challenged on appeal, the test is whether, taken as a whole in the context of this trial, a court-martial’s legality, fairness, and impartiality were put into doubt by the military judge’s actions; this test is objective, judged from the standpoint of a reasonable person observing the proceedings
19. the military judge erred in interjecting himself into a problem of witness production by leaving the bench during trial and engaging in out-of-court, off-the-record actions without first ascertaining the facts; the matter of witness production was a responsibility of the trial counsel
20. the fact that the military judge failed to perform his duty to fully disclose on the record the events of his out-of-court confrontation with a witness after the events became an issue could cause a reasonable person to question the judge’s impartiality in the proceedings
21. ambiguity in the record concerning the military judge’s confrontation with a witness could cause a reasonable person to question the judge’s impartiality in the proceedings and flows from the following: (1) numerous discussions between the military judge and spectators contain cryptic and incomplete references to persons and events; (2) the military judge’s interaction with witnesses and counsel was marked by numerous interruptions, incomplete sentences, and references to persons and events whose significance was not explained; (3) at least one off-the-record RCM 802 session was not adequately summarized on the record; (4) references to out-of-court developments were vague and incomplete, with little to identify the source of information and whether the information was shared with counsel; (5) the record regarding trial counsel’s motion to recuse the military judge and related intent to submit an interlocutory appeal on that issue is unclear; and (6) the military judge failed to disclose an ex parte conversation with trial counsel about the timing of a witness’s testimony
22. the military judge’s continued participation in the case, after the development of a stipulation that relied extensively on the judge’s personal knowledge of out-of-court events and that placed the judge’s stature and credibility in contest with the credibility of a witness, and adversely reflected on the military judge’s own professional conduct, clearly raised questions about his impartiality under RCM 902(a)
23. there is a three-part test for determining whether reversal of a conviction or decision should be granted as a remedy when a judge has failed to recognize that his or her disqualification was required because the judge’s impartiality might reasonably be questioned: the reviewing court will consider (1) the risk of injustice to the parties in the particular case, (2) the risk that denial of relief will produce injustice in other cases, and (3) the risk of undermining the public’s confidence in the judicial process
24. the state of the record makes it impossible for the court to test the failure of the military judge to recuse himself under RCM 902(a), and a remand for fact-finding proceedings was ordered, where: (1) the actual events surrounding the military judge’s confrontation with a witness are unclear; (2) it is not possible to determine precisely what defense counsel knew about the events while the trial was ongoing; (3) the impact these events had on the entire trial is not clear; (4) post-trial filings do not clarify these matters because they also contain gaps and inconsistencies; (5) there are disparities in the record about whether defense counsel observed any of the out-of-court interactions between the military judge and the witness; and (6) the documents prepared by various attorneys in the course of the post-trial review reflect inconsistent descriptions of what transpired at trial as well

Core Criminal Law Subjects: Crimes: Article 125 - Sodomy Pre-2019 offenses

1. findings of guilty of forcible sodomy were legally sufficient; in light of the military judge’s instructions on tender years and incapacity due to sleepiness, a rational trier of fact could reasonable have determined on the basis of the evidence that the sexual contact described by the victim occurred without his consent while he was in the process of wakening, and that the victim took steps to terminate the contact once he became aware of it

Core Criminal Law Subjects: Evidence: Expert / Scientific Testimony

1. a trial judge is required to make a preliminary assessment of whether the reasoning or methodology underlying an expert’s testimony is scientifically sound, and whether that reasoning or methodology properly applies to the facts at issue; this assessment applies not only to expert testimony based upon scientific knowledge, but also to technical and other specialized knowledge covered by Mil.R.Evid. 702
2. the military judge’s gatekeeping function with respect to scientific/expert testimony is to ensure that any and all expert testimony, including any information used to form the basis for an opinion, is not only relevant, but also reliable
3. military judge did not abuse his discretion in qualifying expert and admitting his testimony where the military judge ultimately undertook to apply the appropriate analysis under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), where the scientific principles involved were not particularly novel or controversial, and where the witness testified that: (1) his opinions were based upon his own experience and on an overview of analytical studies in the field; (2) the studies he relied upon were peer-reviewed; (3) the rates of error were reported in the studies, but he presently lacked recall of the rates for each study; (4) the studies were scientifically valid, had not been repudiated, and were generally accepted within the scientific community; and (5) he still retained licenses to practice and had personal experience in treating victims of sexual abuse

Core Criminal Law Subjects: Witnesses: Experts

1. a trial judge is required to make a preliminary assessment of whether the reasoning or methodology underlying an expert’s testimony is scientifically sound, and whether that reasoning or methodology properly applies to the facts at issue; this assessment applies not only to expert testimony based upon scientific knowledge, but also to technical and other specialized knowledge covered by Mil.R.Evid. 702
2. the military judge’s gatekeeping function with respect to scientific/expert testimony is to ensure that any and all expert testimony, including any information used to form the basis for an opinion, is not only relevant, but also reliable
3. military judge did not abuse his discretion in qualifying expert and admitting his testimony where the military judge ultimately undertook to apply the appropriate analysis under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), where the scientific principles involved were not particularly novel or controversial, and where the witness testified that: (1) his opinions were based upon his own experience and on an overview of analytical studies in the field; (2) the studies he relied upon were peer-reviewed; (3) the rates of error were reported in the studies, but he presently lacked recall of the rates for each study; (4) the studies were scientifically valid, had not been repudiated, and were generally accepted within the scientific community; and (5) he still retained licenses to practice and had personal experience in treating victims of sexual abuse

Core Criminal Law Subjects: Witnesses: Production of

1. trial counsel’s responsibilities include the duty to obtain the presence of witnesses for both the prosecution and the defense, including the issuance of military orders for active duty witnesses and subpoena’s for civilians
2. a military judge may issue a warrant of attachment to compel the presence of a civilian witness, but only under very specific circumstances as set forth in RCM 703(e)(2)(G)(ii); military judges do not have the power to treat non-compliance with a subpoena as a contempt of court

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Trial Presumptions, Inferences

1. there is a strong presumption that a judge is impartial, and a party seeking to demonstrate bias must overcome a high hurdle; remarks, comments, or rulings of a judge do not constitute bias or partiality unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Appellate Presumptions, Inferences

1. a panel is presumed to understand and follow the instructions of the military judge absent competent evidence to the contrary

Trial Stages: Merits: Instructions › Generally

1. although instructions in this complex case were not presented in the most organized and coherent fashion possible, the military judge clearly retracted and corrected all erroneous instructions, and under these circumstances the military judge did not abuse his discretion in the overall manner in which the instructions were delivered

Trial Stages: Appeals: Remedies › Generally

1. there is a three-part test for determining whether reversal of a conviction or decision should be granted as a remedy when a judge has failed to recognize that his or her disqualification was required because the judge’s impartiality might reasonably be questioned: the reviewing court will consider (1) the risk of injustice to the parties in the particular case, (2) the risk that denial of relief will produce injustice in other cases, and (3) the risk of undermining the public’s confidence in the judicial process

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

1. a judge’s decision on the issue of disqualification is reviewed for abuse of discretion
2. when a military judge’s impartiality [appearance of bias] is challenged on appeal, the test is whether, taken as a whole in the context of this trial, a court-martial’s legality, fairness, and impartiality were put into doubt by the military judge’s actions; this test is objective, judged from the standpoint of a reasonable person observing the proceedings
3. the test for legal sufficiency to support a finding of guilty is whether, when the evidence is viewed in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt
4. the propriety of instructions given by a military judge is reviewed de novo

Trial Stages: Appeals: Waiver

1. of all the grounds for disqualification in RCM 902, only the appearance of bias may be waived, RCM 902(a), after full disclosure of the basis on the record. RCM 902(e)
2. because the military judge did not ensure that the record reflected a full disclosure as required by RCM 902(e), court found it inappropriate to conclude on the present state of the record that the defense counsel waived the appearance of bias disqualification in this case – specifically, the record was deficient in the following respects: (1) the military judge never disclosed an ex parte conversation with trial counsel about the timing of a witness’s testimony; (2) the military judge failed to provide a complete description of his out-of-court confrontations with a witness; (3) what description there is was not coherent and made it difficult to determine precisely what happened during the confrontations; and (4) the judge put the witness on the stand and questioned him in a manner that minimized the disclosure of information about the events