Friday, July 04, 2008

QP from Moorefield cert petition

We previously noted the cert petition seeking review of United States v. Moorefield, 66 M.J. 170 (C.A.A.F. 2008) (per curiam).

Here's the QP from the cert petition: "Whether a former judge who presided over the criminal trial of a defendant may later prosecute the same defendant?"

1 comment:

Phil Cave said...

I'm prepared to accept that a military judge is a "judge" within the meaning of 28 USC 451. Although I would agree it's something of a stretch. And I'm prepared to accept that a MJ should recuse herself from sitting as a MJ in a case based on the same criteria as 28 USC 455. Although I think there are equally available cases, rules, and policies available in military law to reach the same result.

However, I see no reason to apply the disqualifications in Moorefield because the TC's not the MJ. Thus the role is different. It's true a TC has a legal and professional obligation to seek justice, not just a conviction. But, absent something in the record, how does being a TC in a later case cause a recusal. This is substantially different than the cases of the former DC who becomes TC, or represented a prosecution witness (which we seem to have no trouble with).

Maybe I'm missing something, but this petition seems frivolous. Do we not have cases that say it's OK for the same MJ to preside in two separate cases against the accused, assuming no reasons of bias, etc.? CAAF identifies nothing in the record to indicate a bias, other than a general bias of not liking criminals who reoffend. I suppose the TC would have a greater knowledge about the prior offenses, but so what, that would be a public record as part of the first trial. I'm surprised CAAF even granted.

My Liege, convince me I'm wrong.