U.S. v. Davis, 85 M.J. 295

First Principles: Constitutional Matters: Generally

1. the Constitution recognizes higher values than speed and efficiency
2. an accused servicemember who is being court-martialed is not entitled to a unanimous guilty verdict in order to be convicted

First Principles: Constitutional Matters: Due Process

1. in this case, after the chief circuit military judge initially detailed himself to the accused's GCM, his improper detailing of a second military judge prior to the assembly of that court did not constitute a due process violation where there was no bias on the part of either judge and where the record did not demonstrate the the chief circuit military judge wanted to influence the outcome of any aspect of the accused's case

First Principles: Constitutional Matters: Right to a Jury Trial

1. an accused servicemember who is being court-martialed is not entitled to a unanimous guilty verdict in order to be convicted

Military Justice Personnel: Military Judge: Generally

1. although the terms 'disqualification' and 'recusal' are closely related, disqualification refers to the basis for a judge not to be able to sit on a case and 'recusal' refers to the judge's refusing to sit on grounds of disqualification
2. RCM 505(e)(1) provides that before a court-martial is assembled, the military judge may be changed without cause shown in the record; this provision presumes that the reason for the reassignment is proper; however, it does not excuse or place beyond the reach of legal review a reassignment of a case for an improper motive or reason
3. there is a strong presumption that a judge is impartial, and a party seeking to demonstrate bias must overcome a high hurdle; in this case, there was insufficient evidence in the record that would serve to rebut this presumption, such as persuasive material indicating that the chief circuit military judge was biased against the accused or towards the government
4. federal circuit courts test improper judicial substitutions for prejudice
5. the mere denial of a motion without more does not serve as a proper basis to conclude that a judge was biased against an accused or that the trial was unfair

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. military judges have an obligation to guard and enforce every right of an accused secured by the Constitution
2. military judges have the responsibility and authority to exercise reasonable control over court-martial proceedings

Military Justice Personnel: Military Judge: Conduct/Misconduct

1. after the chief circuit military judge had arraigned the accused in a GCM, his conduct in detailing a second military judge to the case prior to the assembly of that court on the basis that (1) he had granted unanimous verdict motions in separate and unrelated cases, (2) those rulings were pending on appeal, and (3) the accused would likely file the same motion in his court-martial, constituted a 'reassignment' of the case rather than a disqualification or recusal; the chief circuit judge viewed his conduct as a reassignment and acted accordingly where (1) he routinely used his authority to reassign cases to a second judge in past, (2) the second judge viewed it as reassignment and proceeded accordingly, and (3) there was no evidence that the chief circuit judge was removed from the case by the chief trial judge of Army or by any other authority
2. after the chief circuit military judge had arraigned the accused in a GCM, his detailing of a second military judge to the case prior to the assembly of that court on the basis that (1) the chief circuit military judge had granted unanimous verdict motions in separate and unrelated cases, (2) those rulings were pending on appeal, and (3) the accused would likely file same motion in his court-martial, did not result in the chief circuit judge's automatic recusal or disqualification from the case based on reasonable questions about his impartiality; although the chief judge did not explain his decision to reassign the case, the RCMs permitted a pre-assembly change of judges without cause, the chief judge's later-explained rationale was to improve efficiency of judicial circuit, there was no evidence that chief judge was biased against the accused or toward the government, and he did not know how the second judge would rule on the accused's unanimous verdict motion
3. in this case, after the chief circuit military judge had arraigned the accused in a GCM, he improperly reassigned the case to a second military judge prior to the assembly of that court where he did not want to favorably rule on a likely defense motion for a unanimous verdict; his reasoning was fundamentally flawed because concerns about court efficiency cannot arbitrarily trump a military judge's duty to protect the rights of an accused
4. in this case, the judge who presided over the accused's case was not disqualified from sitting where there was no basis to believe that this judge believed that the chief circuit military judge was acting improperly in reassigning the case to him and where there was no basis to conclude that this judge sought to decide the issues presented to him in the accused's case in anything other than a fair and open-minded manner
5. the mere denial of a motion without more does not serve as a proper basis to conclude that a judge was biased against an accused or that the trial was unfair

Trial Stages: Merits: Trial Procedures › Generally

1. an accused servicemember who is being court-martialed is not entitled to a unanimous guilty verdict in order to be convicted

Trial Stages: Appeals: Court of Appeals for the Armed Forces

1. the CAAF applies a de novo standard of review when deciding the legal question of whether there was structural error in a given court-martial
2. in making a structural error determination as to alleged improper conduct of two trial judges, the CAAF examines the conduct and rulings of those judges rather than the reasoning of the lower appellate court
3. the CAAF reviews prejudice determinations de novo

Trial Stages: Appeals: Harmless / Prejudicial Error

1. federal circuit courts test improper judicial substitutions for prejudice
2. the CAAF reviews prejudice determinations de novo
3. the mere invocation of a nonmeritorious constitutional right at the trial level does not entitle an accused to the heightened harmless beyond a reasonable doubt standard of review at the appellate level
4. in this case, because the chief circuit military judge's improper reassignment of the accused's case to a second judge did not rise to the level of a constitutional violation, the Article 59(a), UCMJ, standard of prejudice for nonconstitutional errors is applied, and the appellate court must determine whether the error materially prejudiced the substantial rights of the accused; stated differently, the appellate court must determine whether there is a reasonable probability that, but for the error, the outcome of the proceedings would have been different
5. in this case, despite the fact that the chief circuit military judge erred when he reassigned the accused's case to a second judge, there was no prejudicial effect arising from this reassignment because, in the final analysis, the accused received a fair trial before an impartial military judge

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

1. the CAAF applies a de novo standard of review when deciding the legal question of whether there was structural error in a given court-martial
2. in making a structural error determination as to alleged improper conduct of two trial judges, the CAAF examines the conduct and rulings of those judges rather than the reasoning of the lower appellate court
3. the CAAF reviews prejudice determinations de novo
4. the mere invocation of a nonmeritorious constitutional right at the trial level does not entitle an accused to the heightened harmless beyond a reasonable doubt standard of review at the appellate level
5. in this case, because the chief circuit military judge's improper reassignment of the accused's case to a second judge did not rise to the level of a constitutional violation, the Article 59(a), UCMJ, standard of prejudice for nonconstitutional errors is applied, and the appellate court must determine whether the error materially prejudiced the substantial rights of the accused; stated differently, the appellate court must determine whether there is a reasonable probability that, but for the error, the outcome of the proceedings would have been different

Trial Stages: Appeals: Structural Error

1. the CAAF applies a de novo standard of review when deciding the legal question of whether there was structural error in a given court-martial
2. in making a structural error determination as to alleged improper conduct of two trial judges, the CAAF examines the conduct and rulings of those judges rather than the reasoning of the lower appellate court
3. errors will be deemed structural in nature, thereby requiring no proof of prejudice, only in a very limited class of cases
4. there is a strong presumption that an error is not structural
5. a trial judge's reassignment of a case for an improper purpose is not part of the "limited class" of structural error cases; improper judicial substitutions are tested for prejudice
6. an error is structural only if it affects the entire conduct of the proceeding from beginning to end and renders a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence
7. in this case, after the chief circuit military judge initially detailed himself to the accused's GCM, his improper detailing of a second military judge prior to the assembly of that court was not a structural error where there was nothing in the record demonstrating that the accused's trial before the second judge was unfair or unreliable