U.S. v. Armstrong, 85 M.J. 31

Military Justice Personnel: Military Judge: Generally

1. a military judge should be disqualified if there is an appearance of bias; in the military context, the appearance of bias principle is derived from RCM 902(a) which provides that a military judge shall disqualify himself or herself in any proceeding in which that military judge's impartiality might reasonably be questioned
2. there is a strong presumption that a judge is impartial, and a party seeking to demonstrate bias must overcome a high hurdle, particularly when the alleged bias involves actions taken in conjunction with judicial proceedings
3. a military judge must avoid undue interference with the parties' presentations or the appearance of partiality
4. judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge; they will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible

Military Justice Personnel: Military Judge: Discretion

1. a military judge's ruling constitutes an abuse of discretion if it is arbitrary, fanciful, clearly unreasonable or clearly erroneous, not if this Court merely would reach a different conclusion
2. in this case, the military judge did not abuse her discretion when she denied appellant's motion to recuse herself because a reasonable person knowing all the circumstances would not conclude that the military judge's impartiality might be reasonably questioned where (1) many of the interactions between the military judge and defense counsel that are at issue occurred outside the presence of the panel, (2) the interactions were actions taken in conjunction with judicial proceedings, and (3) the military judge used a measured tone during the exchanges with defense counsel at issue in this case; although there were tense moments between the military judge and defense counsel, the military judge avoided undue interference with the parties' presentations and the appearance of partiality, and the military judge's remarks did not reveal such a high degree of favoritism or antagonism as to make fair judgment impossible

Military Justice Personnel: Military Judge: Conduct/Misconduct

1. ((a military judge should be disqualified if there is an appearance of bias; in the military context, the appearance of bias principle is derived from RCM 902(a) which provides that a military judge shall disqualify himself or herself in any proceeding in which that military judge's impartiality might reasonably be questioned)
2. there is a strong presumption that a judge is impartial, and a party seeking to demonstrate bias must overcome a high hurdle, particularly when the alleged bias involves actions taken in conjunction with judicial proceedings
3. a military judge must avoid undue interference with the parties' presentations or the appearance of partiality
4. judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge; they will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible

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

1. there is a strong presumption that a judge is impartial, and a party seeking to demonstrate bias must overcome a high hurdle, particularly when the alleged bias involves actions taken in conjunction with judicial proceedings

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

1. there is a strong presumption that a judge is impartial, and a party seeking to demonstrate bias must overcome a high hurdle, particularly when the alleged bias involves actions taken in conjunction with judicial proceedings

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

1. there is a strong presumption that a judge is impartial, and a party seeking to demonstrate bias must overcome a high hurdle, particularly when the alleged bias involves actions taken in conjunction with judicial proceedings

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

1. there is a strong presumption that a judge is impartial, and a party seeking to demonstrate bias must overcome a high hurdle, particularly when the alleged bias involves actions taken in conjunction with judicial proceedings

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

1. there is a strong presumption that a judge is impartial, and a party seeking to demonstrate bias must overcome a high hurdle, particularly when the alleged bias involves actions taken in conjunction with judicial proceedings

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

1. an appellate court uses 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
2. for an appearance of bias claim, an appellate court reviews a military judge's decision to not recuse under an abuse of discretion standard, considering the facts and circumstances using an objective standard
3. if a military judge erroneously decided to not recuse because of an appearance of bias, an appellate court analyzes three factors to determine whether reversal is warranted: (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 the public's confidence in the judicial process
4. to determine whether the military judge abused her discretion when she denied defense counsel's motion for her recusal, an appellate court must decide whether a reasonable person knowing all the circumstances would conclude that the military judge's impartiality might reasonably be questioned; if so, it must then determine whether reversal is warranted for such an abuse of discretion