20 M.J. 973 | U.S. Navy-Marine Corps Court of Military Review | 1985
Appellant was tried by special court-martial, military judge alone, on 7' January 1985 and pursuant to his pleas was found guilty of five specifications of unauthorized absence in violation of Article 86 of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 886. He was sentenced to a bad conduct discharge, confinement at hard labor for 100 days, forfeiture of $400.00 pay per month for 3 months, and reduction to pay grade E-l. The convening authority approved the findings and sentence as adjudged but, in accordance with the pretrial agreement, suspended confinement in excess of 3 months for a period of 12 months from the date of trial.
Before this Court appellant makes the following assignment of error:
THE MILITARY JUDGE WAS DISQUALIFIED TO ACT IN APPELLANT'S CASE AND ERRED WHEN HE FAILED TO RECUSE HIMSELF SINCE HE WAS ACTING AS THE LEGAL OFFICER OF THE CONVENING AUTHORITY AT THE TIME THE OFFENSES ALLEGED IN SPECIFICATIONS 1, 2, AND 3 OF THE CHARGE OCCURRED.
Appellant’s special court-martial was convened by the commanding officer of the USS SARATOGA (CV-60). At the beginning of trial, the military judge advised that he had been the convening authority’s legal officer during the time of the inception and termination of the first three unauthorized absences charged, but that he had “no memory whatsoever of Airman Edwards” and .that he had “formed no opinion concerning his case.” The military judge had been relieved as the SARATOGA’S legal officer prior to 17 May 1984, the date appellant commenced his next unauthorized absence. The charges were preferred and referred on 4 December 1984. Defense counsel conducted voir dire of the military judge with respect to this disclosure and stated that he had no challenge for cause.
Appellant asks this Court to set aside the findings and sentence on the grounds that the military judge should have recused himself pursuant to Rule for Court-Martial (R.C.M.) 902(b)(2). That rule provides that a military judge shall disqualify himself “[wjhere the military judge has acted as counsel, investigating officer, legal officer, staff judge advocate, or convening authority as to any offense charged or in the same case generally.” Additionally, R.C.M. 902(e) provides that a ground for disqualification under R.C.M. 902(b) may not be waived.
The Government argues that a military judge is not disqualified where his prior relationship to a case is of a merely administrative nature or where his “prior involvement with the case is nothing more than a pro forma relationship.” Additionally, the Government urges that 902(b)(2) requires some earlier action on the case by the military judge before he is disqualified and that, in the instant case, the military judge did not “act on” the charges which occurred while he was the convening authority’s legal officer.
The instant case presents a close call with respect to the military judge’s R.C.M. 902(b)(2) duty to recuse himself. At the very least, the circumstances appear to approach the situation where a military judge would be disqualified from sitting on
Although we make no finding with respect to whether or not the military judge should have recused himself in the instant case, the frequency of changes in military assignments forewarns that this situation is likely to recur. Thus, we feel compelled to make some comment in order to provide guidance to military judges who find themselves on the bench after having served as command legal advisers. In this regard we state first of all that we question appellate government’s argument implying that recusal is mandated only when the military judge, in a prior capacity, has taken some concrete, definable action on a case or set of charges. We believe that the language in R.C.M. 902(b)(2), requiring recusal where the military judge “has acted as”,legal officer, etc.; “as to any offense charged or in the same case generally," (emphasis added), implicitly recognizes that advice rendered by an SJA does not always manifest itself in some tangible document or “action” such as, for example, an Article 34 advice letter. Although there is no statutory requirement that the convening authority refer charges to his legal officer for advice in a special court-martial, more often than not a commander will informally consult his legal expert with respect to the disposition of those charges. Accordingly, we decline to make disqualification of the military judge contingent upon the existence of some document indicating that he has taken some prior action on the case. We think it unwise also to rely on a military judge’s assurances that he does not remember an accused and the charges before him. His recollection of any involvement he may have had with the case will often not surface until a later point in the trial, such as during witness testimony or during the guilty plea inquiry.
Federal decisions interpreting 28 U.S.C. § 455, the federal analogue of R.C.M. 902
In accordance with our finding that the appellant suffered no prejudice from the military judge not recusing himself in the instant case, we affirm the findings of guilty and the sentence as approved by the convening authority.
. "As long as a qualified military judge presides over the court-martial, any irregularity in detailing a military judge is not jurisdictional and could result in dismissal only if specific prejudice was shown.” Appendix 21, Analysis, Manual for Courts-Martial, 1984 (MCM 1984) at A 21-25 (citing S.Rep. No. 53, 98th Cong., 1st Sess. 12 (1983)). The cited Congressional record states that "errors in the assignment or excusal of counsel, members, or a military judge that do not effect the required composition of a court-martial will be tested solely for prejudice under Article 59.”
. R.C.M. 902 is in fact based on 28 U.S.C. § 455. Manual for Courts-Martial, 1984 (MCM, 1984), Appendix 21, Analysis at A21-45. The pertinent provisions of 28 U.S.C. § 455 state:
(b) He [a justice, judge or magistrate] shall also disqualify himself in the following circumstances:
(2) Where in private practice he served as a lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter or the judge or such lawyer has been a material witness concerning it;
(3) Where he has served in governmental employment and in such capacity participated as counsel, advisor or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy____