Hasan v. Gross, 71 M.J. 416

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. the command, and not the military judge, has the primary responsibility for the enforcement of grooming standards; the maintenance of discipline, unit cohesion, and unit morale are command responsibilities and functions; a military judge’s contempt authority is directed toward control of the courtroom; although the military judge here stated that appellant’s beard was a disruption, there was insufficient evidence on this record to demonstrate that appellant’s beard materially interfered with the proceedings

Military Justice Personnel: Military Judge: Conduct/Misconduct

1. in the military context, the appearance of bias principle with respect to the recusal of a military judge is derived from RCM 902(a): “A military judge shall disqualify himself . . . in any proceeding in which that military judge’s impartiality might reasonably be questioned.”; the standard for identifying the appearance of bias is objective: any conduct that would lead a reasonable man knowing all the circumstances to the conclusion that the judge’s impartiality might reasonably be questioned
2. as in the civilian context, recusal of a military judge based on the appearance of bias is intended to promote public confidence in the integrity of the judicial process; what matters is not the reality of bias or prejudice but its appearance; in the military justice system, where charges are necessarily brought by the commander against subordinates and where, pursuant to Article 25, UCMJ, the convening authority is responsible for selecting the members, military judges serve as the independent check on the integrity of the court-martial process; the validity of this system depends on the impartiality of military judges in fact and in appearance
3. in this case, the removal of the military judge based on the appearance of bias was appropriate where the military judge had appellant, a practicing Muslim, removed from the courtroom because of his beard, where the military judge issued appellant six contempt citations for failing to shave, where the military judge ordered appellant’s forcible shaving in the absence of any command action to do the same and in the absence of sufficient evidence to demonstrate that appellant’s beard materially interfered with the proceedings, where the military judge impliedly accused appellant of soiling the floor of the deliberation room latrine and banned appellant from using that latrine again, and where the military judge and his family were present on base on the day of the shooting incident at issue in the court-martial; all of these circumstances could lead an objective observer to conclude that the military judge was not impartial towards appellant; in fact, it could reasonably appear to an objective observer that the military judge had allowed the proceedings to become a duel of wills between himself and appellant rather than an adjudication of the serious offenses with which appellant was charged; based on a combination of the aforementioned factors, a reasonable person, knowing all the relevant facts, would harbor doubts about the military judge’s impartiality

Trial Stages: Writs and Interlocutory Appeals: Generally

1. to prevail on a writ of mandamus, appellant must show that: (1) there is no other adequate means to attain relief; (2) the right to issuance of the writ is clear and indisputable; and (3) the issuance of the writ is appropriate under the circumstances

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

1. to prevail on a writ of mandamus, appellant must show that: (1) there is no other adequate means to attain relief; (2) the right to issuance of the writ is clear and indisputable; and (3) the issuance of the writ is appropriate under the circumstances
2. the standard for identifying the appearance of bias requiring the recusal of a military judge is objective: any conduct that would lead a reasonable man knowing all the circumstances to the conclusion that the judge’s impartiality might reasonably be questioned