Thursday, May 22, 2008

Another military judge recusal refusal reversal

United States v. McIlwain, __ M.J. ___, No. 07-0544/AR (C.A.A.F. May 22, 2008), is the second military judge recusal case that CAAF has released this month. And surprisingly, the only dissenter in that other case -- United States v. Greatting, 66 M.J. 226 (C.A.A.F. 2008) -- wrote for the majority in holding that the military judge erred by failing to recuse herself in McIlwain.

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.


Anonymous said...

This opinion is up there with Denedo for worst of the year. And to think this was about an issue not raised by appellate counsel or appellant.

Judge Ryan's dissent is right on the money here - the court transforms an inartful comment into a reversal for judicial bias. The majority opinion provides a new teaching point for judges school: Judges should never, ever be candid on the record.

I also like the "rehearing is authorized" bit at the end to the majority's opinion. This case is one and done - an overseas rape case with a foreign nation victim will never be retried.

This case, not the judge's comment, will "produce a corrosive impact on public confidence in the military justice system."

And that blogger who thinks CAAF is soft on sex offenders will have a field day on this one.

John O'Connor said...

I agree with every single thing in Anonymous's post about this decision. I swear that is not me writing under the cloak of anonymity, though it might as well have been.

I express no view on the last sentence of Anonymous's post.

John O'Connor said...

Cue Schoolhouse Rock:

Recusal Refusal

Let's have a perusal

Mixin' up analysis based on a stray comment

Anonymous said...

This case will not "produce a corrosive impact on public confidence in the military justice system" because nobody will hear about this case and nobody will care.

The public confidence test is a theoretical test, not an actual one.

Your comment, "Judges should never, ever be candid on the record" is layered with problems at every level.

First, this is not a personal attack on the judge. This is just business. If anything, "thank you for candor, we must disagree with your legal conclusion." This is the way justice is supposed to work: a clean, truthful and factual record, and a clear legal analysis of the problem.

Second, by innuendo, you reveal more than you may have intended about the government's motives to achieve truth and justice. You can try to deny it, but you are essentially urging judges to lie. Or, lets put it this way, to engage in behavior that if attempted by a soldier or sailor, would be considered lying and prosecuted as a Art 134 offense...and has been. Yes, failing to be "candid" has been prosecuted.

Third, CAAF should NEVER peak at the prospects for rehearing when deciding the merits of a particular case, which you imply it should.

Finally, the fact that the issue was not raised by appellate counsel or appellant is a complete non-sequiter. It makes not a particle of difference. Assigned errors are helpful, but not limiting. Or, put crudely, a less-than-zealous or complete briefing does not excuse an error.