U.S. v. Greatting, 66 M.J. 226

First Principles: Constitutional Matters: Generally

1. an accused has a constitutional right to an impartial judge

Military Justice Personnel: Military Judge: Generally

1. an accused has a constitutional right to an impartial judge
2. when assigned to the judiciary, the military judge frequently will find himself or herself in close and continuing contact with judge advocates outside the courtroom; in light of these and other circumstances, members of the military judiciary must be particularly sensitive to applicable standards of judicial conduct

Military Justice Personnel: Military Judge: Qualifications and Appointment of

1. under RCM 902(a), a military judge shall disqualify himself or herself in any proceeding in which that military judge’s impartiality might reasonably be questioned
2. presiding over companion cases does not alone constitute grounds for recusal; however, when an ex parte discussion about those cases takes place between the military judge and the SJA prior to appellant’s court-martial and while clemency matters and appeals in the companion cases were pending, that would lead a reasonable person to question the military judge’s impartiality

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. under RCM 902(a), a military judge shall disqualify himself or herself in any proceeding in which that military judge’s impartiality might reasonably be questioned
2. when assigned to the judiciary, the military judge frequently will find himself or herself in close and continuing contact with judge advocates outside the courtroom; in light of these and other circumstances, members of the military judiciary must be particularly sensitive to applicable standards of judicial conduct

Military Justice Personnel: Military Judge: Conduct/Misconduct

1. presiding over companion cases does not alone constitute grounds for recusal; however, when an ex parte discussion about those cases takes place between the military judge and the SJA prior to appellant’s court-martial and while clemency matters and appeals in the companion cases were pending, that would lead a reasonable person to question the military judge’s impartiality
2. when assigned to the judiciary, the military judge frequently will find himself or herself in close and continuing contact with judge advocates outside the courtroom; in light of these and other circumstances, members of the military judiciary must be particularly sensitive to applicable standards of judicial conduct
3. ex parte contact with counsel does not necessitate recusal under RCM 902(a), particularly if the record shows that the communication did not involve substantive issues or evidence favoritism for one side; however, an ex parte communication which might have the effect or give the appearance of granting undue advantage to one party cannot be condoned; the same holds true when considering the propriety of ex parte contact between a military judge and an SJA
4. military judge who presided over four companion cases abused his discretion by not recusing himself after having an ex parte discussion with the convening authority’s SJA and probably his deputy in which he provided case-specific criticism about the companion cases before clemency matters had been resolved in any of those cases and possibly before the pretrial agreement in appellant’s case had been finalized and in which he commented on the potential culpability of appellant; the military judge’s ex parte discussion with the SJA would lead a reasonable person, knowing all the circumstances, to the conclusion that the military judge’s impartiality might reasonably be questioned and he was obliged to recuse himself for implied bias under RCM 902(a)

Trial Stages: Appeals: Remedies › Generally

1. appellant was entitled to the relief of reversal of his conviction as a result of the military judge’s erroneous failure to recuse himself after his ex parte discussion with the convening authority’s SJA in which he provided a critique about the overall prosecution of companion cases prior to appellant’s court-martial and while clemency matters and appeals in the companion cases were pending; first, the record established a risk that the military judge’s conversation with the SJA adversely affected appellant’s position in pretrial negotiations; second, providing relief in cases such as this [enforcing RCM 902(a)] may prevent a substantive injustice in some future case by encouraging a military judge to more carefully examine possible grounds for disqualification; and third, the conduct of the military judge created the risk of undermining the public’s confidence in the military justice system where a judicial officer interfered into matters entirely within the discretion of the convening authority and gave the appearance that he was aligned with the government

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

1. a military judge’s decision not to recuse himself is reviewed for an abuse of discretion
2. in reviewing a military judge’s ruling on a recusal motion, an appellate court considers the facts and circumstances under an objective standard; the test is whether there was any conduct that would lead a reasonable man knowing all the circumstances to the conclusion that the judge’s impartiality might reasonably be questioned
3. in determining whether relief is warranted when a military judge abused his discretion by denying a recusal motion, an appellate court considers the following three factors: (1) the risk of injustice to the parties in the particular case; (2) the risk that the denial of relief will produce injustice in other cases; and (3) the risk of undermining the public’s confidence in the judicial process