No. 56,167; CM 447284 | United States Court of Military Appeals | Apr 25, 1988
Lead Opinion
Opinion of the Court
The issue in this case is whether appellant was prejudiced by the military judge’s failure to recuse himself.
As the Court of Military Review has well noted, the military judge erred when he did not recuse himself from presiding under circumstances
Although the judge was personally satisfied that he could fairly discharge his responsibilities, he denied appellant’s request for trial by judge alone out of concern that others might perceive bias.
After a careful analysis, the Court of Military Review concluded that appellant had not, in fact, been prejudiced, and it
Because appellant was tried by general court-martial, the forum options available to him were:
(A) a military judge and not less than five members; or
(B) only a military judge, if before the court is assembled the accused, knowing the identity of the military judge and after consultation with defense counsel, requests orally on the record or in writing a court composed only of a military judge and the military judge approves.
Art. 16(1), UCMJ, 10 U.S.C. § 816(1) (emphasis added).
R.C.M. 903(c)(2)(B) similarly states that “[ujpon receipt of a timely request for trial by military judge alone the military judge shall ... [ajpprove or disapprove the request, in the military judge’s discretion.” (Emphasis added.) The nonbinding
A plain reading of Article 16(1) and R.C.M. 903(c)(2)(B) leads to the conclusion that, while trial by members is an absolute right, trial by judge alone is not. United States v. Butler, supra. In this respect, military practice parallels federal civilian practice. Singer v. United States, 380 U.S. 24" court="SCOTUS" date_filed="1965-03-01" href="https://app.midpage.ai/document/singer-v-united-states-106985?utm_source=webapp" opinion_id="106985">380 U.S. 24, 34-36, 85 S.Ct. 783, 789-91, 13 L. Ed. 2d 630" court="SCOTUS" date_filed="1965-03-01" href="https://app.midpage.ai/document/singer-v-united-states-106985?utm_source=webapp" opinion_id="106985">13 L.Ed.2d 630 (1965).
Since appellant was deprived of this right — wrongly—the question of prejudice arises. If the notion of prejudice is so restrictive that the accused must establish the likelihood that a judge would have handed down more favorable findings or sentence, then a loop of logic emerges. The accused will be tasked with an impossible burden because court members are ordinarily regarded as the servicemember’s primary bastion against baseless charges, and his only ammunition is rank speculation. The result is that even a blatantly disqualified military judge can, with impunity, stay on a case and strip a servicemember of this congressionally and presidentially conferred option. In our view, the instant case violates the principle that “[a] fair trial in a fair tribunal is a basic requirement of due process.” In re Murchison, 349 U.S. 133" court="SCOTUS" date_filed="1955-05-16" href="https://app.midpage.ai/document/in-re-murchison-105303?utm_source=webapp" opinion_id="105303">349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed.2d 942 (1955). Indeed, this situation is potentially far worse than that in United States v. Butler, supra, where an otherwise qualified military judge merely omitted to disclose his reasons for denying trial by judge alone.
In any event, given the multitude of situations in a court-martial that require judi
For these reasons, we hold that when a trial judge is disqualified, all the judge’s actions from that moment on are void — except for those immediately necessary to assure the swift and orderly substitution of judges. Cf McKay v. Superior Court in and for Shasta County, 98 Cal. App. 2d 770" court="Cal. Ct. App." date_filed="1950-08-03" href="https://app.midpage.ai/document/mckay-v-superior-court-1409588?utm_source=webapp" opinion_id="1409588">98 Cal.App.2d 770, 220 P.2d 945, 949 (1950). If a judge is disqualified to sit as judge alone, he is also disqualified to sit with members. In sum, no matter how well-intentioned the judge was, appellant suffered prejudice because he was wrongfully denied the option of trial by judge alone.
It is not our intention to elevate the right of trial by judge alone to the unqualified status of the right to trial by members, but we do see a middle ground. First, we presume that, in the vast majority of cases, there will continue to be no basis for the military judge to recuse him or herself, or to deny a request for trial by judge alone. Next, there inevitably will be a class of cases comprising that middle ground where the judge has been judicially exposed to information, such as during a providence inquiry or a related trial of a eoaccused, but where the judge is not otherwise disqualified. See United States v. Widgery, 778 F.2d 325" court="7th Cir." date_filed="1985-11-25" href="https://app.midpage.ai/document/united-states-v-william-a-widgery-sr-461391?utm_source=webapp" opinion_id="461391">778 F.2d 325, 328 (7th Cir.1985); United States v. Bradley, 7 M.J. 332" court="None" date_filed="1979-09-24" href="https://app.midpage.ai/document/united-states-v-bradley-8642947?utm_source=webapp" opinion_id="8642947">7 M.J. 332 (C.M.A.1979). In those cases, within his or her sound discretion, the judge may well decline to sit alone, and we see little basis for substituting our judgment for the judge’s. This class of cases, therefore, is different from those in which a judge is disqualified from sitting.
Finally, there will be those rare cases, as here, where a judge is disqualified, even if only through appearances. It is those very few cases that we intend to affect with this decision. Even so, if circumstances amounting to military necessity had been present, we might well have concluded that appearances did not disqualify this judge (and we suspect the Court of Military Review would have done the same).
The decision of the United States Army Court of Military Review is reversed. The findings of guilty and the sentence are set aside. The record of trial is returned to the Judge Advocate General of the Army. A rehearing may be ordered.
. The issue as precisely framed is:
WHETHER THE ARMY COURT OF MILITARY REVIEW ERRED IN HOLDING THAT THE MILITARY JUDGE’S FAILURE TO RECUSE HIMSELF, THOUGH ERROR, DID NOT MATERIALLY PREJUDICE THE SUBSTANTIAL RIGHTS OF APPELLANT.
. Contrary to his pleas, appellant was convicted of two specifications of burglary, battery on a child under the age of 16, committing an indecent act on a child under the age of 16, and assault with a dangerous weapon, violations of Articles 128, 129, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 928, 929, and 934, respectively. Against this backdrop, the Court of Military Review described the circumstances upon which it concluded that the judge erred in refusing to recuse himself:
At the opening session of the court-martial the trial judge disclosed that one of the alleged burglaries occurred next door to his military quarters and he recognized by sight these neighbors: that the alleged female victim was the daughter of these neighbors and was a close friend of the judge's own thirteen year-old daughter; that he had driven his daughter and her friend (and other “kids”) to various places, including ski trips of one or two days duration; and that the same young girl had spent the night in his quarters as a guest of his daughter. In response to defense counsel’s question of how the military judge would view the credibility of the alleged victim should she testify, the judge responded that he was "convinced in his own mind [he] would not attach any more significance to her testimony on any factors than [he] would to any other witness.”
22 MJ. 917, 919.
. Appellant’s instincts seem to have been valid since the members of this general court-martial sentenced him to the literal maximum punishment allowed by law: dishonorable discharge, confinement for 29 years, total forfeitures, and reduction to Private E-l. The Court of Military Review subsequently reduced the period of confinement to 20 years. 22 MJ. at 923.
. Like the Court of Military Review, we impute no impropriety of motive or integrity to the judge’s actions. We merely disagree with his conclusions in this particular regard.
. We adopt the Court of Military Review's excellent analysis of waiver and its conclusion that, in this circumstance, appellant did not waive his challenge for cause against the military judge by requesting trial by judge alone. 22 MJ. at 921-22.
. In addition, being an enlisted person, appellant might have requested enlisted persons as court members. Art. 25(c), UCMJ, 10 U.S.C. § 825(c).
. Appendix 21, Manual for Courts-Martial, United States, 1984, at A21-3.
. A federal defendant has the added power to halt the trial judge in his tracks until another judge has reviewed the defendant’s affidavit contending that the judge is biased or prejudiced, provided that the affidavit is sufficient in its declarations. 28 U.S.C. § 144.
. We share Judge Sullivan’s sentiment that this is an appropriate case for a rehearing, and we are well aware of the language of Article 67(e), UCMJ, 10 U.S.C. § 867(e), which he cites. We also note that Article 67(f) indicates that, notwithstanding such rehearing order, the convening authority "may dismiss the charges” if he "finds a rehearing impracticable.” Thus, the efficacy of an "order” is a matter of semantic debate.
In any event, we view the decision to institute or reinstitute criminal proceedings as an executive function, not a judicial one. See A.B.A. Standards, The Prosecution Function, Standards 3-3.4, and 3-3.9 (1982). We have observed no breakdown in the prosecutorial system which requires our intervention. Moreover, if, on further review, the prosecution officials decide that, for whatever reasons, a rehearing is not in the interest of justice, the last thing we would want to do is force unwilling parties to endure an unnecessary trial. For these reasons, our preference is to authorize, but not require, rehearings.
Concurrence in Part
(concurring in part and dissenting in part):
I concur with my Brothers in their opinion and only dissent in the remedy taken. In my view, justice requires that the truth of the criminal charges here be determined at a new court-martial. Article 67(e), Uniform Code of Military Justice, 10 U.S.C. § 867(e), indicates that this Court “may ... order a rehearing” if the findings and sentence are set aside. In this case, I would order a rehearing. See United States v. Scott, 24 M.J. 186" court="None" date_filed="1987-07-06" href="https://app.midpage.ai/document/united-states-v-scott-8647437?utm_source=webapp" opinion_id="8647437">24 M.J. 186, 193-94 (C.M.A.1987) (Sullivan, J., concurring in part and dissenting in part).