After the military judge raised the subject, the defense moved to disqualify her because she had presided over the courts-martial of two of Specialist McIlwain's co-actors. The military judge denied the request. She stated that her experience trying the companion cases "would suggest to an impartial person looking in that [she] can't be impartial in this case" had it been a judge-alone case. (Interestingly, she seemed to suggest that the impartial observer would fear she would be biased for the defense.) But the military judge declined to recuse herself from a members trial, which this turned out to be.
The majority repeats the familiar rule that presiding over "companion cases does not, without more, mandate recusal." McIlwain, No. 07-0544/AR, slip op. at 6. But "once the military judge performed the analysis required by R.C.M. 902(a) and announced that her participation 'would suggest to an impartial person looking in that I can't be impartial in this case,' such a person would question her impartiality." Id. This conclusion was an application of the rule that "[i]f a judge is disqualified to sit as judge alone, [s]he is also disqualified to sit with members." Id. (quoting United States v. Sherrod, 26 M.J. 30, 33 (C.M.A. 1988)).
The majority then applied the test from Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847 (1988), to determine whether the military judge's failure to recuse herself was prejudicial. Yes, ruled the majority, principally due to the "corrosive impact on public confidence in the military justice system" arising from the military judge's participation. Id., slip op. at 8.
Judge Stucky wrote for a majority consisting of himself, Chief Judge Effron, and Judge Erdmann. Judge Baker and Judge Ryan each wrote a dissent.
Judge Ryan's dissent, joined by Judge Baker, noted that the test for disqualification is objective rather than subjective and maintained that "[o]bjectively, there was no basis for disqualification." Nor did the defense present any evidence suggesting the need for disqualification. Judge Ryan also concluded that if the military judge had erred by failing to recuse herself, that error did not result in prejudice.
In Judge Baker's dissent, he suggested that the majority "effectively creates a per se rule against military judges sitting on companion cases." Judge Baker also expressed his concern that in future cases, judges will not be as candid in addressing possible disqualification issues as the military judge was in this case. Judge Baker then wraps up his dissent with a paragraph that I absolutely love:
That is surely not good for military practice. And it is surely not the intent of the majority, which I know is focused along with the dissents on the integrity of the military justice system.
What a wonderful acknowledgement that even while expressing strong disagreement with the majority's result, he doesn't doubt for a moment the majority's good faith and good intentions. This language is a model for disagreeing without being disagreeable.
In fact, reading that language makes me ashamed to go back into straight jacket mode. But having noted Inabinette's use of a gender-specific pronoun (I know; technically that should be sex-specific, but that phrase carries too much baggage; if we all start writing "gender-specific," then it will become standard usage) to refer to a generic military judge, I've got to comment on the McIlwain majority's use of the female first-person singular personal pronoun to refer to a generic military judge. McIlwain, slip op. at 5. The McIlwain majority opinion then quotes a 2001 CAAF opinion using a male third-person singular personal pronoun, objective case to refer to a generic military judge. Perhaps the former was used because the military judge in the McIlwain case is a woman (though this was not a reference to her), or perhaps it was an attempt to avoid generically referring to judges with a male pronoun, or to balance the male pronoun used in the Quintanilla quotation. Whatever the reason, I hope judicial opinions will move beyond using gender-specific pronouns to refer to judges and other generic human beings, as Garner urges and illustrates in his guides on usage.