U.S. v. McIlwain, 66 M.J. 312

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. it is well-settled in military law that the military judge is more than a mere referee; the military judge is the presiding authority in a court-martial and is responsible for ensuring that a fair trial is conducted; the judge has broad discretion in carrying out this responsibility, including the authority to call and question witnesses, hold sessions outside the presence of members, govern the order and manner of testimony and argument, control voir dire, rule on the admissibility of evidence and interlocutory questions, exercise contempt power to control the proceedings, and, in a bench trial, adjudge findings and sentence; in these roles, the impartiality of a presiding judge is crucial, for the influence of the trial judge on the members is necessarily and properly of great weight, and members are ever watchful of the words that fall from him; particularly in a criminal trial, the judge’s last word is apt to be the decisive word
3. that a military judge sat on companion cases does not, without more, mandate recusal
4. a military judge abused her discretion by denying a defense motion to recuse herself in a members trial after declaring that her participation in companion cases would suggest to an impartial person looking in that she could not be impartial in the case and refusing to sit as trier of fact
5. if a judge is disqualified to sit as judge alone, that judge is also disqualified to sit with members

Military Justice Personnel: Military Judge: Qualifications and Appointment of

1. except where the parties have waived disqualification of the military judge after full disclosure of the basis for disqualification, a military judge must recuse herself in any proceeding in which that military judge’s impartiality might reasonably be questioned
2. whether a military judge should disqualify himself or herself is viewed objectively, and is assessed not in the mind of the military judge himself or herself, but rather in the mind of a reasonable man who has knowledge of all the facts; military judges should broadly construe possible reasons for disqualification, but also should not recuse themselves unnecessarily
3. that a military judge sat on companion cases does not, without more, mandate recusal
4. a military judge abused her discretion by denying a defense motion to recuse herself in a members trial after declaring that her participation in companion cases would suggest to an impartial person looking in that she could not be impartial in the case and refusing to sit as trier of fact
5. if a judge is disqualified to sit as judge alone, that judge is also disqualified to sit with members

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. except where the parties have waived disqualification of the military judge after full disclosure of the basis for disqualification, a military judge must recuse herself in any proceeding in which that military judge’s impartiality might reasonably be questioned
2. whether a military judge should disqualify himself or herself is viewed objectively, and is assessed not in the mind of the military judge himself or herself, but rather in the mind of a reasonable man who has knowledge of all the facts; military judges should broadly construe possible reasons for disqualification, but also should not recuse themselves unnecessarily
3. it is well-settled in military law that the military judge is more than a mere referee; the military judge is the presiding authority in a court-martial and is responsible for ensuring that a fair trial is conducted; the judge has broad discretion in carrying out this responsibility, including the authority to call and question witnesses, hold sessions outside the presence of members, govern the order and manner of testimony and argument, control voir dire, rule on the admissibility of evidence and interlocutory questions, exercise contempt power to control the proceedings, and, in a bench trial, adjudge findings and sentence; in these roles, the impartiality of a presiding judge is crucial, for the influence of the trial judge on the members is necessarily and properly of great weight, and members are ever watchful of the words that fall from him; particularly in a criminal trial, the judge’s last word is apt to be the decisive word
4. that a military judge sat on companion cases does not, without more, mandate recusal
5. a military judge abused her discretion by denying a defense motion to recuse herself in a members trial after declaring that her participation in companion cases would suggest to an impartial person looking in that she could not be impartial in the case and refusing to sit as trier of fact
6. if a judge is disqualified to sit as judge alone, that judge is also disqualified to sit with members

Military Justice Personnel: Military Judge: Discretion

1. an appellate court will reverse a military judge’s decision on the issue of recusal only for an abuse of discretion
2. a military judge abused her discretion by denying a defense motion to recuse herself in a members trial after declaring that her participation in companion cases would suggest to an impartial person looking in that she could not be impartial in the case and refusing to sit as trier of fact

Trial Stages: Appeals: Remedies › Generally

1. not every judicial disqualification error requires reversal; in determining whether a judge’s disqualification warrants a remedy, an appellate court will follow the three-part test announced by the Supreme Court in Liljeberg v. Health Services Acquisition Corp., 486 US 847 (1988): (1) the risk of injustice to the parties, (2) the risk that the denial of relief will produce injustice in other cases, and (3) the risk of undermining public confidence in the judicial process
2. reversal is warranted in this case for the military judge’s error in denying the defense’s motion to recuse herself in a members trial after she declared that her participation in companion cases disqualified her from presiding as the trier of fact in a judge-alone trial, where the risk of injustice to the parties is high when a judge who has stated her bias nonetheless presides over the court-martial, even when she does not act as the trier of fact, and where the risk of undermining the public’s confidence in the judicial system is most affected; every time the judge made a decision, she exercised her discretion - a discretion which she herself had found was biased; this could not but produce a corrosive impact on public confidence in the military justice system; the guiding consideration is that the administration of justice should reasonably appear to be disinterested as well as be so in fact

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

1. whether a military judge should disqualify himself or herself is viewed objectively, and is assessed not in the mind of the military judge himself or herself, but rather in the mind of a reasonable man who has knowledge of all the facts; military judges should broadly construe possible reasons for disqualification, but also should not recuse themselves unnecessarily
2. an appellate court will reverse a military judge’s decision on the issue of recusal only for an abuse of discretion
3. not every judicial disqualification error requires reversal; in determining whether a judge’s disqualification warrants a remedy, an appellate court will follow the three-part test announced by the Supreme Court in Liljeberg v. Health Services Acquisition Corp., 486 US 847(1988): (1) the risk of injustice to the parties, (2) the risk that the denial of relief will produce injustice in other cases, and (3) the risk of undermining public confidence in the judicial process