Wednesday, January 02, 2008

CAAF orders NMCCA to relook at recusal refusal

CAAF issued an interesting order in United States v. Harris on New Year's Eve. As previously discussed by one of our many deceased Navy flag officer commentators,

Harris involves a prosecutorial misconduct/UCI issue where Navy JAG LT Chen allegedly exerted pressure on local law enforcement to silence an exculpatory witness in Harris' case. LT Chen's alleged misconduct led to a formal ethics complaint being filed at the Office of the Judge Advocate General, Code 13, which was then headed by Captain Easy E. Geiser. As I recall, Captain Geiser found that LT Chen had not engaged in ethical misconduct.

Not surprisingly, when Harris was issued, the [author] judge, now Judge Geiser, agreed with himself that there had been no previous misconduct.

On Monday, CAAF granted review of this issue in Harris:
WHETHER A JUDGE ON THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS SHOULD HAVE BEEN RECUSED FROM ACTING ON A CASE IN WHICH HE HAD PREVIOUS OFFICIAL INVOLVEMENT AND KNOWLEDGE OF SALIENT FACTS OUTSIDE THE RECORD OF TRIAL.

United States v. Harris, __ M.J. ___, No. 07-0385/NA (C.A.A.F. Dec. 31, 2007) (summary disposition). CAAF then remanded the case to NMCCA for reconsideration of the issue, with the benefit of the relevant file from the Administrative Law Division, by a panel that doesn't include any of the judges from the original panel.

5 comments:

Anonymous said...

This has got to be incredibly humiliating, not only for Judge Geiser, but for all of the judges at NMCCA that sat en banc and denied the original defense motion to produce the documents. Documents which it now seems contain a smoking gun that points out an ethical conflict with a sitting judge.

Regardless of how this ultimately plays out, this has got to already negatively affect the public perception of the military justice process.

I wonder if the Navy JAG will take any action in response?

Christopher Mathews said...

This is interesting.

Assuming the judge in question does not recuse himself, what standard does CAAF intend to set forth for the rest of the service court to follow in determining whether to recuse him against his will? And what standard does CAAF intend to apply in determining whether the service court correctly decided the involuntary recusal?

I'm not commenting on the merits of this case. I just wonder whether CAAF has thought beyond them.

Anonymous said...

In this context, isn't "recusal" the wrong term. The term should be "disqualify" - if someone else, like a court, is doing it.

The standard for both recusal and disqualification should probably be something like "substantial and personal involvement" with a prior matter.

The Navy JAG should not take any particular action, but because this is such an embarassment, he should order the Court or Code-13 to develop a disqualification of judges criteria. Avoiding the 'appearance of impropriety' or avoiding the 'appearance of bias' should the guiding principle underlying any specific rule.

No Man said...

Good to see Anonymous has now taken on a judicial reform stance. I may start agreeing more and more with what she says.

William Butler Remey said...

Ethics rules do need to be spelled out and enforced. Right now it's a "do the right thing" type deal. The JAG was asked to certify this issue to CAAF but opted not to. He was also asked to order the production of the Code 13 documents but opted not to. I suppose letting things play out wasn't a bad idea, but this case does force the issue of whether we will police ourselves or have some third party do it for us.

As for the recusal issue, I don't think Judge G has a choice now - he's benched along with the panel. At the time that the motion was filed en banc it was really up to the Chief Judge of NMCCA to determine what do to. I don't think that there's any set procedure in place that would give rise to a standard (on appeal to a higher court the standard is abuse of discretion). All the Chief Judge needed to have done once the allegations were substantiated was vacate the decision and assign the case to a new panel. I read about a Third Circuit case where the Chief Judge did exactly that - the judge whose decision was vacated: then Judge Alito.