U.S. v. Shea, 76 M.J. 277

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. generally, absent exceptional circumstances, a judge should hear and decide matters assigned unless disqualified

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. a CCA is a court of limited jurisdiction and possesses only that power authorized by the Constitution and statute
2. nothing in the UCMJ or rules of procedure provide an accused the right to select a CCA panel or have his case considered by any particular panel; by law, the court may review cases en bancor in panels, and the chief judge of the court has broad authority to assign, remove, and reassign judges to cases on the court’s docket
3. many reasons exist for a change of assignment of cases from one CCA panel to another, ranging from workload of particular panels to reassignment of judges from a panel; the consideration of an accused’s case by any properly constituted panel satisfies Article 66, UCMJ; moreover, an accused attains no right to have his case considered by any particular panel either before or after the first random assignment by the office of the clerk
4. when a case is being reviewed by the CCA on remand, an accused does not possess a right to a panel composed of the same appellate judges who originally reviewed his case

Trial Stages: Appeals: Remedies › Remand

1. when a case is being reviewed by the CCA on remand, an accused does not possess a right to a panel composed of the same appellate judges who originally reviewed his case

Miscellaneous Matters: Command Influence: Generally

1. in order to raise the issue of apparent unlawful influence, an accused must demonstrate the following: (a) facts, which if true, constitute unlawful command influence; and (b) this unlawful command influence placed an intolerable strain on the public’s perception of the military justice system because an objective, disinterested observer, fully informed of all the facts and circumstances, would harbor a significant doubt about the fairness of the proceeding

Miscellaneous Matters: Command Influence: Burdens

1. in this case, appellant failed to establish some evidence of apparent unlawful command influence where his claim amounted to no more than a claim of command influence in the air; although appellant claimed that apparent unlawful influence existed because the JAG had inappropriately assigned one of the judges on his original panel to a perform other duties and thereafter that judge had been removed from the panel by the CCA’s chief judge, neither action taken by the JAG or chief judge was inappropriate or unlawful; appellant failed to present any evidence that a plan or scheme to unlawfully remove that judge existed, and appellant’s speculation as to motive was insufficient