U.S. v. Butcher, 56 M.J. 87

Military Justice Personnel: Military Judge: Conduct/Misconduct

1. an accused has a constitutional right to an impartial judge
2. RCM 902(a), governing disqualification of military judges for appearance of bias, maintains public confidence in the judicial system by avoiding even the appearance of partiality and enhances confidence in the fairness of the proceedings because in matters concerning bias, the line between appearance and reality is often barely discernable
3. in the course of reviewing the military judge’s ruling under RCM 902(a) for abuse of discretion, the facts and circumstances are considered under an objective standard: Any conduct that would lead a reasonable man knowing all the circumstances to the conclusion that the judge’s impartiality might reasonably be questioned is a basis for the judge’s disqualification
4. although the appearance of bias standard does not require judges to live in an environment sealed off from the outside world, the interplay of social and professional relationships in the armed forces poses particular challenges for the military judiciary, and military judges must be particularly sensitive to applicable standards of judicial conduct
5. activity inconsistent with standards of judicial conduct does not mandate recusal unless it rises to the level of a violation of applicable disqualification standards
6. there is no mandated particular remedy for situations in which an appellate court determines that the military judge should have removed himself or herself from a case
7. there is a three-part test for determining whether reversal of a conviction or decision is warranted as a remedy when a judge has erred in failing to recognize that disqualification was required because the judge’s impartiality might 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
8. although court assumes that military judge should have recused himself, reversal was not warranted where: (1) events giving rise to disqualification occurred near end of trial; (2) the military judge was not called upon to exercise discretion on any matter of significance concerning findings after that point; (3) appellant was sentenced by members; (4) appellant received one of the sentence alternatives requested by defense counsel; (5) it was not necessary to reverse this case to ensure that military judges exercise the appropriate degree of discretion in the future; and (6), under the circumstances, reversal is not required to avoid undermining the public’s confidence in the judicial process
9. based on the following factors, the court assumes without deciding that the military judge should have recused himself under the appearance of bias standard of MRE 902(a): (1) during a weekend recess prior to giving findings instructions, the military judge attended a party at the home of trial counsel; (2) the posted invitation to the party stated, “To Promote Peace, Love, and Harmony Among Trial & Defense Counsel in the Greater San Antonio Metropolitan Area. Yeah, Right!”; (3) appellant’s defense counsel did not attend the party; (4) appellant’s case was not discussed other than a comment by the military judge that the case lasted longer than anticipated; (5) at the party, the military judge agreed to play doubles tennis with trial counsel as his partner; and (6) the day after the party, the military judge played a practice tennis match with trial counsel, although appellant’s case was not discussed

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. on appeal, the issue of unreasonable multiplication of charges involves the duty of the Courts of Criminal Appeals to "affirm only such findings of guilty, and the sentence . . . as it . . . determines, on the basis of the entire record, should be approved." Art. 66(c), UCMJ
2. highly discretionary power of the Courts of Criminal Appeals to deal with claims of unreasonable multiplication of charges includes the power to determine that a claim of unreasonable multiplication of charges has been waived or forfeited when not raised at trial

Trial Stages: Appeals: Remedies › Generally

1. there is no mandated particular remedy for situations in which an appellate court determines that the military judge should have removed himself or herself from a case
2. there is a three-part test for determining whether reversal of a conviction or decision is warranted as a remedy when a judge has erred in failing to recognize that disqualification was required because the judge’s impartiality might 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. the decision of a military judge on the issue of recusal is reviewed on appeal for abuse of discretion; court specifically declines to adopt a minority position that the standard of review is de novo
2. in the course of reviewing the military judge’s ruling under RCM 902(a) for abuse of discretion, the facts and circumstances are considered under an objective standard: Any conduct that would lead a reasonable man knowing all the circumstances to the conclusion that the judge’s impartiality might reasonably be questioned is a basis for the judge’s disqualification

Trial Stages: Appeals: Waiver

1. Court of Criminal Appeals determined that appellant forfeited issue of unreasonable multiplication of charges by not raising it at trial, and Court of Appeals for the Armed Forces was not shown any specific circumstances that would lead it to conclude that lower court abused its considerable discretion

Miscellaneous Matters: Multiplicity and Lesser Included Offenses: Unreasonable Multiplication of Charges

1. on appeal, the issue of unreasonable multiplication of charges involves the duty of the Courts of Criminal Appeals to "affirm only such findings of guilty, and the sentence . . . as it . . . determines, on the basis of the entire record, should be approved." Art. 66(c), UCMJ
2. highly discretionary power of the Courts of Criminal Appeals to deal with claims of unreasonable multiplication of charges includes the power to determine that a claim of unreasonable multiplication of charges has been waived or forfeited when not raised at trial
3. Court of Criminal Appeals determined that appellant forfeited issue of unreasonable multiplication of charges by not raising it at trial, and Court of Appeals for the Armed Forces was not shown any specific circumstances that would lead it to conclude that lower court abused its considerable discretion