U.S. v. Martinez, 70 M.J. 154

First Principles: Constitutional Matters: Generally

1. an accused has a constitutional right to an impartial judge; RCM 902 recognizes this right

Military Justice Personnel: Military Judge: Qualifications and Appointment of

1. an accused has a constitutional right to an impartial judge; RCM 902 recognizes this right and generally provides two bases for disqualification of a military judge; one provides for specific circumstances requiring disqualification; the other provides for a general rule of disqualification for certain appearances of partiality

Military Justice Personnel: Military Judge: Conduct/Misconduct

1. when a military judge’s impartiality is challenged on appeal, the test is whether, taken as a whole in the context of this trial, a court-martial’s legality, fairness, and impartiality were put into doubt by the military judge’s actions; the appearance of impartiality is reviewed on appeal objectively and is tested under the following 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; because not every judicial disqualification requires reversal, the standards announced by the Supreme Court in Liljeberg [486 US 847 (1988)] are used to determine whether a military judge’s conduct warrants that remedy to vindicate public confidence in the military justice system
2. Rule 1.2 of the ABA Model Code of Judicial Conduct, mirrored by the Code of Judicial Conduct for Army Trial and Appellate Judges, provides that a judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety or the appearance of impropriety; paramount among a military judge’s continuing ethical responsibilities, consistent with the Model Code and pursuant to the Army Code, is to ensure against improper ex parte communications and the appearance of partiality; specifically, Rule 2.9 provides a general prohibition against initiating, permitting, or considering ex parte communications involving substantive matters, except in very limited circumstances; in this case, the supervisory military judge’s communications with the trial counsel during the trial concerning the legal sufficiency of the providence inquiry and/or the legal sufficiency of the inquiry into the pretrial agreement involved substantive matters, and it was plain and obvious error for her to initiate those ex parte communications with trial counsel; compounding this error, the supervisory judge entered the presiding trial judge’s chambers during a recess she initiated as well as during the deliberations, and failed to inform the trial judge that she had been communicating ex parte with the prosecution; a reasonable person knowing all these circumstances would have observed the supervisory judge privately conferring with the trial counsel and then accompanying the presiding judge into his chambers during recess and deliberations; this course of conduct under the circumstances created an appearance that neither the supervisory judge nor the trial judge was impartial

Trial Stages: Appeals: Harmless / Prejudicial Error

1. in this case, the appearance of partiality created by the supervisory judge privately conferring with the trial counsel and then accompanying the presiding judge into his chambers during recess and deliberations did not materially prejudice appellant, where after appellant informed the convening authority of the judge’s highly unusual actions and requested reduced confinement as a remedy, the convening authority approved a sentence consistent with appellant’s request; as to the first part of the Liljeberg [486 US 847 (1988)] test, the record did not support nor has appellant identified any specific injustice that he personally suffered under the circumstances; as to the second part of the test, it was not necessary to reverse the results of the present trial in order to ensure that military judges exercise the appropriate degree of discretion in the future; and as to the third part of the test, the parties recognized the error and fashioned an appropriate remedy, and under these circumstances, the public’s confidence in the military justice system would not be undermined

Trial Stages: Appeals: Preservation of Error / Plain Error

1. when an appellant does not raise an issue of disqualification of the military judge until appeal, an appellate court examines the claim under the plain error standard of review; plain error occurs when (1) there is error, (2) the error is plain or obvious, and (3) the error results in material prejudice
2. Rule 1.2 of the ABA Model Code of Judicial Conduct, mirrored by the Code of Judicial Conduct for Army Trial and Appellate Judges, provides that a judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety or the appearance of impropriety; paramount among a military judge’s continuing ethical responsibilities, consistent with the Model Code and pursuant to the Army Code, is to ensure against improper ex parte communications and the appearance of partiality; specifically, Rule 2.9 provides a general prohibition against initiating, permitting, or considering ex parte communications involving substantive matters, except in very limited circumstances; in this case, the supervisory military judge’s communications with the trial counsel during the trial concerning the legal sufficiency of the providence inquiry and/or the legal sufficiency of the inquiry into the pretrial agreement involved substantive matters, and it was plain and obvious error for her to initiate those ex parte communications with trial counsel; compounding this error, the supervisory judge entered the presiding trial judge’s chambers during a recess she initiated as well as during the deliberations, and failed to inform the trial judge that she had been communicating ex parte with the prosecution; a reasonable person knowing all these circumstances would have observed the supervisory judge privately conferring with the trial counsel and then accompanying the presiding judge into his chambers during recess and deliberations; this course of conduct under the circumstances created an appearance that neither the supervisory judge nor the trial judge was impartial
3. in a plain error context with respect to a military judge’s impartiality, an appellate court looks to see if the error materially prejudiced the substantial rights of appellant and whether, under Liljeberg [486 US 847 (1988)], reversal is warranted; both inquiries are conducted even if the court concludes that there is no Article 59(a) prejudice as it is possible that appellant may not have suffered any material prejudice to a substantial right, but that reversal would still be warranted under Liljeberg

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

1. when an appellant does not raise an issue of disqualification of the military judge until appeal, an appellate court examines the claim under the plain error standard of review; plain error occurs when (1) there is error, (2) the error is plain or obvious, and (3) the error results in material prejudice
2. when a military judge’s impartiality is challenged on appeal, the test is whether, taken as a whole in the context of this trial, a court-martial’s legality, fairness, and impartiality were put into doubt by the military judge’s actions; the appearance of impartiality is reviewed on appeal objectively and is tested under the following 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; because not every judicial disqualification requires reversal, the standards announced by the Supreme Court in Liljeberg [486 US 847 (1988)] are used to determine whether a military judge’s conduct warrants that remedy to vindicate public confidence in the military justice system
3. in a plain error context with respect to a military judge’s impartiality, an appellate court looks to see if the error materially prejudiced the substantial rights of appellant and whether, under Liljeberg [486 US 847 (1988)], reversal is warranted; both inquiries are conducted even if the court concludes that there is no Article 59(a) prejudice as it is possible that appellant may not have suffered any material prejudice to a substantial right, but that reversal would still be warranted under Liljeberg
4. in the context of judicial disqualification, the Supreme Court’s Liljeberg [486 US 847 (1988)] test provides that in determining whether a judgment should be vacated, it is appropriate for an appellate court to consider 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
5. with respect to the third part of the Liljeberg test in the context of judicial disqualification, an appellate court considers whether denying a remedy to appellant under the circumstances of the case will risk undermining the public’s confidence in the military justice system; this risk is considered by applying an objective standard similar to the standard applied in the initial RCM 902(a) analysis; this analysis, however, differs from the initial RCM 902(a) inquiry in which appellate courts determine whether the military judge should have recused himself or herself; in the remedy analysis, an appellate court does not limit its review to facts relevant to recusal, but rather reviews the entire proceedings, to include any post-trial proceeding, the convening authority’s action, the action of the Court of Criminal Appeals, and other facts relevant to the Liljeberg [486 US 847 (1988)] test; this remedy analysis involves the public confidence in the military justice system in the context of how that system responds once it has been determined that a military judge was disqualified under RCM 902(a) and should have been recused; that analysis must necessarily include a review of all post-trial actions to evaluate how the public would perceive that response; for example, if further proceedings provided an explanation for a situation that occurred at trial, that may be sufficient to minimize the risk that the conduct would undermine the public’s confidence in the military justice system; if a remedy is granted after further proceedings, that too would impact the risk of undermining the public’s confidence; on the other hand, if the appearance is created and is not explained at trial, or if no remedy is granted, or if there was a remedy that appears inadequate from the perspective of a reasonable person, those facts would increase the risk that the conduct (creating the appearance) would undermine the public’s confidence in the military justice system