In this case the accused was tried before the same military judge and defended by the same counsel who performed in a closely related case. In that case the defense tactic was to blame the accused. Our conclusion is that such a coincidence caused the accused in this case to be unacceptably handicapped in his defense.
On the night of April 1, 1970, two German policemen observed the accused and Private First Class Barry A. Levine in the process of robbing a German national. When the two soldiers left, the policemen approached the victim, confirmed their observations, and followed his assailants to a nearby tavern. When the accused and Levine left the tavern, the policemen approached with güns in their hands and attempted to apprehend them. The accused allegedly fired at the policemen, and both he and Levine fled. Subsequently, the policemen, accompanied by other officers, cornered them in a nearby street, and despite their resistance, took them into custody.
On August 7, 1970, charges against the accused and Levine were referred for a common trial by general court-martial. The two men requested trial by military judge alone, and on August 18 they were duly arraigned on the charges against them. Since only Levine chose to plead guilty, defense counsel moved to sever the accused’s trial from that of Levine, and the motion was granted.
The trial proceeded on Levine’s plea of guilty. During the providency inquiry, Levine implicated the accused, and the military judge treated Levine’s guilt as being predicated on being an aider and abettor. A stipulation of fact not only established both men guilty of robbery and resisting apprehension but also disclosed that the accused had fired on the German police officers, an offense charged only against him. In mitigation, the defense called a witness who testified, that Levine was the victim of circumstances and misled by the accused, of whom he was afraid. Levine testified to his fear of the accused, that the robbery was the accused’s idea, and that accused had previously caused him to be involved in another crime. Levine was sentenced to a bad-conduct discharge, confinement at hard labor for I year, forfeiture of $100 per month for 12 months, and reduction. The military judge recommended suspension of the discharge and a part of the confinement. At the request of the defense counsel, the convening authority deferred the confinement part of Levine’s sentence. In support of his request, counsel argued that the accused was the major actor in the offenses charged and wrongfully influenced Levine to participate in them.
On September 9, 1970, the accused, represented by the same defense counsel, was brought to trial before the same military judge who heard Levine’s case. Counsel challenged the military judge for cause, as a result of his having presided at Levine’s trial. The judge denied the challenge and stated his belief that he could judge the accused solely on the evidence admitted in the present case, disregarding what he had heard before. After the evidence was presented, the accused was convicted and sentenced to a dishonorable discharge, confinement at hard labor for 24 years, total forfeitures, and reduction:
Appellate defense counsel contend that because the military judge presided in Levine’s trial he became so familiar with the role of the accused in the case as to be disqualified to try the accused. Moreover, appellate defense counsel find considerable conflict between trial defense counsel’s action in minimizing Levine’s guilt at the first trial by depicting this accused as the principal actor in the offenses and his later representation of Jarvis. According to this view the combined effect of these errors was substantial
In reply, the Government argues that the military judge’s disclaimer was enough to counter any suggestion that his having presided at Levine’s trial would have a lingering harmful effect on Jarvis. It "acknowledges that had the two court-martial proceedings not been severed and had counsel taken the same approach of trying to establish appellant as the principal actor and bad influence on Levine, it would then be necessary to concede that divided loyalties resulted in appellant’s ineffective representation.” Such a result is not required, the Government contends, when the proceedings are separate.
A military judge is not subject to challenge because he has presided in a closely related case, unless the circumstances are such that recusing himself is in the interest of having the trial “free from substantial doubt as to . . . legality, fairness, and impartiality.” Paragraph 62f(13), Manual for Courts-Martial, United States, 1969 (Rev ed); see paragraph 62f(10), MCM, supra; United States v Broy,
Since the challenge by trial defense counsel in this case was for nothing more than the military judge’s having presided over Levine’s trial, we would ordinarily give effect to the judge’s disclaimer of bias or prejudgment and hold the assigned error to be without merit. Cf. United States v Montgomery,
The accused was entitled to be tried before an impartial judge and to the undivided loyalty of his counsel. United States v Villa,
The cumulative effect of the denial of the challenge and the failure to obtain other representation for the accused was to deny him a fair trial. Lollar v United States, 376 F2d 243 (DC Cir 1967); Sawyer v Brough, 358 F2d 70 (4th Cir 1966). While our decision is not meant to asperse the integrity of counsel or the military judge, we nonetheless consider that Jarvis has a right to be tried in a different arrangement.
The decision of the United States Army Court of Military Review is reversed, and the record of trial is returned to the Judge Advocate General of the Army. A rehearing may be ordered.