Walker v. U.S., 60 M.J. 354

Trial Stages: Writs and Interlocutory Appeals: All Writs Act

1. consideration of a case by a CCA panel composed of properly assigned appellate judges is an essential prerequisite to the conduct of appellate review under Article 66, UCMJ; where petitioner’s case is pending Article 66 review before a CCA lacking a properly designated official who can perform the functions of the chief judge in making panel assignments, this is an extraordinary circumstance which directly and adversely affects the normal course of appellate review; as such, issuance of an extraordinary writ by this Court is essential to ensure that petitioner’s case is before a panel authorized to conduct the normal course of appellate review; accordingly, petitioner’s motion for extraordinary relief is granted in part; assignment of judges to the panel reviewing petitioner’s court-martial shall not be made by or under the direction of a chief judge recused from this case; instead, the JAG shall designate an appellate military judge to perform the functions of the chief judge in view of his recusal

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. under typical circumstances, the deficiency resulting from lack of a quorum a panel of a CCA can be readily rectified by its chief judge; under Article 66(a), UCMJ, the chief judge can fill panel vacancies by assigning non-disqualified judges to sit; also, if the court as a whole does not have a sufficient number of non-disqualified judges to fill the panel, the JAG can appoint additional judges for service on the court, and the chief judge then can fill the panel with non-disqualified judges under Article 66(a)
2. Article 66(a), UCMJ, governs the composition of the CCAs and assigns a distinct set of responsibilities to the JAG and to the chief judge of the CCA; the Article requires each JAG to establish a CCA composed of one or more panels, each of which shall be composed of not less than three appellate military judges; it also requires the JAG to designate as chief judge one of the appellate military judges of the CCA; once the court is established and the chief judge is designated, responsibility for assignment of judges within the court is vested by the Article in the chief judge; the chief judge determines on which panels of the court the appellate judges assigned to the court will serve and which military judge assigned to the court will act as the senior judge on each panel; this Article reflects a determination by Congress to create a degree of separation between the JAG and internal assignments within the court
3. Article 66(a), UCMJ, does not provide expressly for a CCA judge to perform the duties of the chief judge when the chief judge is absent or recused; the joint rules for the CCAs, promulgated under Article 66(f), are likewise silent on this matter
4. recusal of a judge in the event of a conflict of interest is a critical element in assuring public confidence in the fairness of the administration of justice; while courts typically have either statutory or internal procedures to designate an acting chief judge when the chief judge is recused, the absence of such a procedure does not preclude an appropriate authority from ensuring the continuity of a court’s operations in the event of the chief judge’s recusal
5. when action by the chief judge is required in a case or series of cases from which the chief judge is recused, the functions of the chief judge must be performed by another official because the CCA would otherwise be brought to a halt; Article 66(a), UCMJ, reflects a congressional preference for a division of responsibilities between the JAG and the chief judge of the CCA; this preference is best furthered by concluding: (1) that the JAG may perform the function assigned to that officer under Article 66(a) -- designating an appellate military judge as chief judge -- for a particular case or cases to fill the void caused by the recusal of the regularly serving chief judge; and (2) that the person serving as chief judge for a case or series of cases may perform in those cases the function assigned to the chief judge under Article 66(a) -- assigning judges to serve on the panel or panels that will hear those cases
6. when a judge is recused, that judge should not take action to influence the appointment of his or her replacement; a chief judge is not necessarily disabled from issuing generally applicable rules that affect a wide range of cases before the court, even if the rule happens to apply to a case in which the chief judge is recused; if, however, the rule will be applied only in that case or a readily identifiable set of cases in which the chief judge is recused, the rule must be drafted or applied in a manner that preserves the effect of the recusal; otherwise, the recusal will not serve the function of Canon 2A of the ABA’s Model Code of Judicial Conduct with respect to promoting public confidence in the integrity and impartiality of the judiciary
7. in this case, reliance on a chief judge’s succession policy to select an acting chief judge was impermissible under the circumstances where the chief judge, who had recused himself from the case and whose recusal remained in place, promulgated that policy in the midst of the litigation from which he was recused, and the impact on that litigation was readily identifiable
8. a court of criminal appeals may not resurrect excluded evidence during appellate review under Article 66(c), UCMJ