U.S. v. Witt, 75 M.J. 380

Military Justice Personnel: Military Judge: Generally

1. the terms “disqualification” and “recusal” for a judge are closely related; whereas disqualification refers to the basis for a judge not to be able to sit on a case, “recusal” refers to the judge’s refusing to sit on grounds of disqualification

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. although a judge has a duty not to sit when disqualified, the judge has an equal duty to sit on a case when not disqualified; a judge who is present for duty does not have the discretion to not participate in an assigned case, absent exceptional circumstances

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. military appellate courts have the inherent authority to reconsider their own decisions; thus, a CCA sitting en banc has the authority to reconsider its own decision, even though the composition of the court has changed
2. how an appellate judge votes on a motion to reconsider is not part of the deliberative process and is subject to discovery
3. the refusal of an appellate judge who is present for duty and not disqualified to participate amounts to disqualification; once disqualified, the judge is prohibited from further participation in the case
4. any judge present for duty at the time the first opinion issued who did not participate in that decision is disqualified from later participation in the case
5. in this case, judges who were present for duty at the time the first decision was issued but did not participate in that decision were de facto disqualified from further participation in the case
6. the disqualification of an appellate judge may be evaluated for harmlessness by examining three factors: 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
7. in this case, where the error resulted in appellant’s vacated death sentence being affirmed, the participation of disqualified judges in the reconsideration process produced a significant risk of undermining the public’s confidence in the judicial process, and thus prejudiced appellant’s substantial rights

Trial Stages: Appeals: Harmless / Prejudicial Error

1. the disqualification of an appellate judge may be evaluated for harmlessness by examining three factors: 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

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

1. the disqualification of an appellate judge may be evaluated for harmlessness by examining three factors: 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