U.S. v. Roach, 69 M.J. 17

Military Justice Personnel: Military Judge: Conduct/Misconduct

1. a recusal of a judge means the judge may not preside over any subsequent proceedings in the case or perform any other judicial actions with respect to it; once recused, a military judge should not play any procedural or substantive role with regard to the matter about which he is recused; when a judge is recused, the judge should not take action to influence the appointment of his or her replacement
2. the chief judge of a court of criminal appeals may not recommend to the JAG an acting chief judge for a case in which the chief judge is recused; by taking a procedural step after his recusal, at a minimum, the chief judge’s actions create the appearance of directly impacting a case from which he was recused
3. in this case, although the error by the chief judge in recommending to the JAG an acting chief judge for a case in which the chief judge was recused was a nonstructural error, it nonetheless was not harmless where public confidence in the military judicial process was surely undermined when judge who was recommended by the recused judge subsequently presided over the case, reviewed the recused judge’s prior conduct, and wrote the opinion upholding the recused’s judge’s conduct

Trial Stages: Appeals: Courts of Criminal Appeals › Sentence appropriateness

1. the CCAs are required to engage in sentence comparison only in those rare instances in which sentence appropriateness can be fairly determined only by reference to disparate sentences adjudged in closely-related cases; adjudged sentences are used because there are several intervening and independent factors between trial and appeal – including discretionary grants of clemency and limits from pretrial agreements – that might properly create the disparity in what are otherwise closely-related cases
2. when the CCA is exercising its power over sentence appropriateness generally, it may consider both adjudged and approved sentences

Trial Stages: Appeals: Court of Appeals for the Armed Forces

1. the CAAF reviews the sentence appropriateness decisions of the CCAs for an abuse of discretion and may order a de novo review when the lower court has erred as a matter of law

Trial Stages: Appeals: Harmless / Prejudicial Error

1. a structural error in a judge’s recusal is inherently prejudicial; with respect to a nonstructural error in a judge’s recusal, it is tested for prejudice and an appellate court must determine if the error was harmless under the three factors set forth in Liljeberg v. Health Services Acquisition Corp, 486 US 847 (1988): the risk of injustice to the parties in the particular case, the risk that the denial of relief will produce injustice in other cases, and the risk of undermining the public’s confidence in the judicial process
2. in this case, although the error by the chief judge in recommending to the JAG an acting chief judge for a case in which the chief judge was recused was a nonstructural error, it nonetheless was not harmless where public confidence in the military judicial process was surely undermined when judge who was recommended by the recused judge subsequently presided over the case, reviewed the recused judge’s prior conduct, and wrote the opinion upholding the recused’s judge’s conduct

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

1. the question of whether a judge has acted consistent with a recusal, as a mixed question of law and fact, is reviewed de novo
2. a structural error in a judge’s recusal is inherently prejudicial; with respect to a nonstructural error in a judge’s recusal, it is tested for prejudice and an appellate court must determine if the error was harmless under the three factors set forth in Liljeberg v. Health Services Acquisition Corp, 486 US 847 (1988): the risk of injustice to the parties in the particular case, the risk that the denial of relief will produce injustice in other cases, and the risk of undermining the public’s confidence in the judicial process
3. whether an appellant’s due process right to a speedy post-trial review has been violated is reviewed de novo

Miscellaneous Matters: Speedy Trial: Post-Trial

1. a 13-month delay by the CCA in releasing a decision in appellant’s case did not constitute a threshold showing of unreasonable delay warranting consideration of the factors from Barker v. Wingo, 407 US 514 (1972), in determining whether appellant’s due process right to a speedy post-trial review had been violated
2. there was no malicious delay on the part of the CCA appellate judges in the first appellate decision in this case where the CCA identified a tension between two distinct lines of jurisprudence, and that tension was unresolved until the CAAF issued the second appellate decision in the case

Miscellaneous Matters: Professional Responsibility / Ethics: Generally

1. a recusal of a judge means the judge may not preside over any subsequent proceedings in the case or perform any other judicial actions with respect to it; once recused, a military judge should not play any procedural or substantive role with regard to the matter about which he is recused; when a judge is recused, the judge should not take action to influence the appointment of his or her replacement
2. the chief judge of a court of criminal appeals may not recommend to the JAG an acting chief judge for a case in which the chief judge is recused; by taking a procedural step after his recusal, at a minimum, the chief judge’s actions create the appearance of directly impacting a case from which he was recused