U.S. v. Tapp, 85 M.J. 19

First Principles: Constitutional Matters: Generally

1. an accused has a constitutional right to an impartial judge

Military Justice Personnel: Military Judge: Generally

1. an accused has a constitutional right to an impartial judge
2. the validity of the military justice system and the integrity of the court-martial process depend on the impartiality of military judges in fact and in appearance

Military Justice Personnel: Military Judge: Discretion

1. in this case, the post-trial military judge did not abuse his discretion when he determined that the trial judge did not display actual bias where the trial judge's remarks, comments, and rulings did not display deep-seated favoritism or antagonism that would make a fair judgment impossible, and the trial judge seemed attuned to appellant's constitutional and statutory rights and took steps to ensure that he was treated fairly
2. in this case, a resolution of whether there was an appearance of bias by the trial judge was unnecessary because even if there was an appearance of bias by the trial judge, the post-trial military judge did not abuse his discretion when, after applying the Liljeberg factors, he decided that appellant was not entitled to any relief; the findings of fact by the post-trial military judge were supported by at least some evidence on the record, and the reviewing court was not left with a definite and firm conviction that an error had occurred
3. in this case, the post-trial judge did not abuse his discretion in ruling that appellant did not suffer any specific injustice at the hands of the trial judge where the trial judge's rulings did not reflect any deep-seated favoritism or antagonism against appellant and instead appeared grounded in the law and facts of the case, the trial judge's expressions of impatience, dissatisfaction, annoyance, and even potentially anger were directed towards counsel on both sides of the aisle, the trial judge did not publicly display bias against appellant in front of the members, the trial judge properly instructed the panel that they should disregard any comment or statement or expression made by him during the course of the trial that might seem to indicate any opinion on his part as to whether appellant was guilty or not guilty, and the trial judge's ex parte session with trial counsel occurred after sentencing
4. in this case, the post-trial military judge did not abuse his discretion when he determined that granting a remedy would not be necessary to ensure that the trial judge or other military judges exercise the appropriate degree of discretion in the future where there was fallout from the judge's ex parte communication in this case, which included the filing of a professional responsibility/judicial ethics complaint against him
5. in this case, the post-trial military judge did not abuse his discretion when he determined that even if the trial judge's actions in this case resulted in an appearance of bias, that appearance would not create an intolerable risk of undermining the public's confidence in the judicial process where (1) the trial judge's rulings were within the range of reasonable options available to him, (2) where he entertained untimely motions by defense counsel and encouraged a more robust sentencing case on behalf of appellant, (3) he did not publicly display bias in front of the members, (4) he properly instructed the panel that during their deliberations, they must disregard any appearance of bias which they may have perceived, (5) the findings and sentence were determined by a panel of members rather than by the trial judge himself, (6) the ex parte session, which constitutes the bulk of the appearance of bias claim in this case, came after the trial was complete, and (7) the length of appellant's adjudged confinement did not exceed typical sentencing parameters

Military Justice Personnel: Military Judge: Conduct/Misconduct

1. under RCM 902, military judges may be disqualified on grounds of an appearance of bias or actual bias; disqualification of a military judge under RCM 902 requires a two-step analysis; first, it must be determined whether disqualification is required under the specific circumstances of actual bias listed in RCM 902(b); if these specific circumstances of actual bias do not apply, the second step asks whether the circumstances nonetheless warrant disqualification based upon a reasonable appearance of bias under RCM 902(a)
2. RCM 902(b) provides five specific grounds that require a military judge to disqualify himself or herself; these grounds include where the military judge has a personal bias or prejudice concerning a party; just as in civilian courts, to meet this standard a military judge must demonstrate bias or prejudice at such a high degree of favoritism or antagonism as to make fair judgment impossible; further, judicial rulings almost never constitute a valid basis for a bias or partiality motion, nor does a judge's ordinary efforts at courtroom administration, even if these efforts are stern and short-tempered
3. even if actual bias does not arise, an appearance of bias is sufficient to disqualify a military judge
4. RCM 902(a) requires a military judge to disqualify himself or herself in any proceeding in which that military judge's impartiality might reasonably be questioned
5. exemplary judicial conduct is the sine qua non of a respected, professional, and effective military justice system; judges are expected to act with independence, impartiality, integrity, and competence and to avoid any semblance of impropriety and the appearance of impropriety in order to maintain the dignity of judicial office at all times; both the appearance and reality of impartial justice is necessary to the public legitimacy of judicial pronouncements and thus to the rule of law itself; to perform its high function in the best way, justice must satisfy the appearance of justice
6. even when a judge's conduct rises to the level of apparent partiality, relief is only warranted if the judge's conduct risks injustice to the parties, risks injustice in future cases, and/or undermines the public's confidence in the judicial process
7. a risk of injustice to appellant is considerably diminished when the events giving rise to a disqualification claim against a military judge occur near the end of a members trial, after the presentation of evidence and discussion of instructions on findings when: (1) a military judge is not called upon to exercise discretion on any matter of significance concerning findings after that point, and (2) a military judge's subsequent participation in the sentencing portion of the trial is limited to instructions and rulings
8. reversal for the appearance of bias by a military judge is not always necessary in order to ensure that military judges exercise the appropriate degree of discretion in the future; rather, because of the highly sensitive nature of the military judiciary, as well as the public nature of opinions from appellate courts, other forms of admonishment may suffice to preserve confidence in the judicial process

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Trial Burdens, Standards › Generally

1. to prove judicial bias, a party must overcome a high hurdle because there exists a strong presumption that a judge is impartial

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Trial Presumptions, Inferences

1. to prove judicial bias, a party must overcome a high hurdle because there exists a strong presumption that a judge is impartial

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Appellate Burdens, Standards, Etc. › Generally

1. to prove judicial bias, a party must overcome a high hurdle because there exists a strong presumption that a judge is impartial

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Appellate Burdens, Standards, Etc. › Presumptions

1. to prove judicial bias, a party must overcome a high hurdle because there exists a strong presumption that a judge is impartial

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Appellate Presumptions, Inferences

1. to prove judicial bias, a party must overcome a high hurdle because there exists a strong presumption that a judge is impartial

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

1. a military judge's ruling on the issue of judicial impartiality is reviewed for an abuse of discretion, and an abuse of discretion occurs when (1) the military judge predicates a ruling on findings of fact that are not supported by the evidence of record, (2) the military judge uses incorrect legal principles, (3) the military judge applies correct legal principles to the facts in a way that is clearly unreasonable, or (4) the military judge fails to consider important facts; an abuse of discretion does not mean that an appellate court merely would reach a different conclusion, but rather that the military judge's ruling was arbitrary, fanciful, clearly unreasonable, or clearly erroneous
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
3. to prove judicial bias, a party must overcome a high hurdle because there exists a strong presumption that a judge is impartial
4. an appellate court applies an objective standard for identifying an appearance of bias by asking whether a reasonable person knowing all the circumstances would conclude that the military judge's impartiality might reasonably be questioned
5. an appellate court applies the three-part test outlined in Liljeberg (486 US 847 (1988)) to determine whether reversal of a decision should be granted as a remedy when the judge's impartiality might reasonably be questioned; the three factors are: (1) the risk of injustice to the parties in the particular case, (2) the risk that the denial of relief will produce injustice in other cases, and (3) the risk of undermining public confidence in the judicial process
6. the Liljeberg determination by the post-trial military judge regarding an appearance of impartiality by the trial judge may only be reversed if he predicated his ruling on erroneous findings of fact, he used incorrect legal principles or applied correct legal principles in an unreasonable manner, or he failed to consider important facts when reaching his conclusions
7. a military judge's findings of fact will be reversed only if they are clearly erroneous; and in order for a finding of fact to be clearly erroneous, there either must be no evidence to support the finding or, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed
8. the confidence in the judicial process factor of the Liljeberg test used to determine whether reversal should be granted as a remedy when a military judge's impartiality might reasonably be questioned employs a totality of the circumstances approach and requires the application of an objective standard to determine whether denying a remedy under the circumstances of a case will risk undermining the public's confidence in the military justice system; this factor differs from the initial RCM 902(a) inquiry into an appearance of bias because it is not limited 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 CCA, or other facts relevant to the Liljeberg test