United States v. WittUnited States v. Witt
For Appellant: Brian L. Mizer, Esq. (argued); Major Daniel E. Schoeni and Major Thomas A. Smith (on brief).
For Appellee: Gerald R. Bruce, Esq. (argued); Colonel Martin J. Hindel, Colonel Katherine E. Oler, Lieutenant Colonel Nurit Anderson, Lieutenant Colonel Roberto Ramirez, Major Matthew J. Neil, and Major Gary M. Osborn (on brief).
Military Judge: W. Thomas Cumbie
Judge STUCKY delivered the opinion of the Court.
Sitting en banc, the United States Air Force Court of Criminal Appeals (CCA) set aside Appellant‘s death sentence. At the Government‘s request, the CCA reconsidered, again sitting en banc, and affirmed the death sentence. The case is before us for mandatory review pursuant to
As a preliminary matter, we specified two issues: (1) whether the CCA, sitting en banc, had authority to reconsider a previous en banc decision; and, (2) whether it could do so when the composition of the en banc court had changed. We hold that the CCA had authority to reconsider its previous en banc decision, even though the composition of the court changed, but that any judge present for duty at the time the first opinion issued who did not participate in that decision was disqualified from later participation in the case.
I. Procedural History
A general court-martial convicted Appellant of the attempted premeditated murder of Senior Airman (SrA) Jason King and the premeditated murders of SrA Andrew Schliepsiek and his wife Jamie Schliepsiek.
The CCA, sitting en banc,1 affirmed the findings but set aside the sentence and ordered a rehearing, holding Appellant‘s defense counsel constitutionally ineffective for failing to investigate certain mitigating evidence. United States v. Witt (Witt I), 72 M.J. 727, 758-66 (A.F.Ct.Crim.App.2013) (en banc). The Government moved for reconsideration and reconsideration en banc, which was granted. United States v. Witt (Witt II), 73 M.J. 738, 753 (A.F.Ct.Crim.App.2014) (recon) (en banc). On reconsideration, the CCA held that the trial defense counsel‘s defective performance did not result in prejudice and affirmed the approved findings and sentence. Id. at 825.
II. En Banc CCA May Reconsider Its En Banc Decision
Appellant argues that
As originally enacted,
The Court of Military Appeals (CMA) noted that “The boards of review were separate and relatively autonomous; they were not constituents of a larger consolidated entity.” United States v. Chilcote, 20 C.M.A. 283, 285, 43 C.M.R. 123, 125 (1971). Each board of review had the inherent authority to reconsider its own opinion. See United States v. Henderson, 52 M.J. 14, 20 (C.A.A.F.1999)
As part of the Military Justice Act of 1968, Congress amended
In Henderson, the question before this Court was whether, in light of the 1983 amendment, a panel could reconsider its own opinion or reconsideration was limited to the court sitting as a whole. 52 M.J. at 19. We held that a panel was still authorized to reconsider its own decision. Id. at 20. Citing the uniform rules of the Judge Advocates General, we noted: “Reconsideration of a decision by a Court of Criminal Appeals is provided for without regard to whether it is sitting as a panel or as a whole.” Id. (citing CCAS R. 4, 17, 19).
Appellant correctly argues that the CCAs are courts of limited jurisdiction, that neither the plain language of
As we have held continuously since the UCMJ was enacted, military appellate courts have the inherent authority to reconsider their own decisions. See id.; United States v. Kraffa, 11 M.J. 453, 455 (C.M.A. 1981) (at least “until the possibility of reconsideration is removed“); United States v. Jackson, 2 C.M.A. 179, 182, 7 C.M.R. 55, 58 (1953) (stating that this Court wishes “to avoid a position which might operate to deprive a military service of full opportunity to correct the errors of its own tribunals“); Reeves, 1 C.M.A. at 390-91, 3 C.M.R. at 124-25 (stating that the boards of review “should have the right to correct clerical errors, inadvertently entered decisions, and those decisions which are clearly wrong as a matter of law“). The CCAs Rules are not the basis for this conclusion, although they are consistent with it. Henderson, 52 M.J. at 19 (stating that the uniform rules prescribed by the Judge Advocates General pursuant to
We hold, therefore, that the CCA sitting en banc had the authority to reconsider its own decision, consistent with CCAS R. 19.
III. The Reconsidering Court Was Improperly Composed
A. Background
The CCA first heard oral argument in this case on October 11, 2012. Witt I was issued ten months later, on August 9, 2013. Four judges, present for duty on that date, declined to participate in Witt I because of their arrival at the CCA well after oral argument and conference but shortly before the opinion issued. Three of those judges, however, subsequently participated in Witt II.3
The Code of Conduct for United States Judges (CCUSJ) provides: “A judge should hear and decide matters assigned, unless disqualified ....”4 Canon 3(A)(2). Although by its own terms, the CCUSJ does not apply to this Court or the CCAs, we have adopted it. United States v. Butcher, 56 M.J. 87, 91 (C.A.A.F.2001); United States v. Quintanilla, 56 M.J. 37, 44 (C.A.A.F.2001). The Air Force, however, has not. Instead, it adopted a modified version of the American Bar Association‘s 1990 Model Code of Judicial Conduct: The Air Force Uniform Code of Judicial Conduct (AFUCJC). Dep‘t of the Air Force, Inst. 51-201, Law, Administration of Military Justice, Attachment 5, pt. I (June 6, 2013) [hereinafter AFI 51-201]; see Butcher, 56 M.J. at 91 (recognizing the applicability of the AFUCJC to Air Force judges).
An Air Force appellate military judge “shall hear and decide matters assigned to the judge, except those in which disqualification is required.” AFI 51-201, AFUCJC R. 3B(1). The CCA has not addressed the meaning of AFUCJC R. 3B(1). Nevertheless, the ABA‘s comment on the Model Rule6 that was the basis for AFUCJC R. 3B(1) is consistent with both the CCUSJ and the Supreme Court‘s view of the duties of a judge: Although a judge has a duty not to sit when disqualified, the judge has an equal duty to sit on a case when not disqualified. Laird v. Tatum, 409 U.S. 824, 837, 93 S.Ct. 7, 34 L.Ed.2d 50 (1972). A judge who is present for duty does not have the discretion to not participate in an assigned case, absent exceptional circumstances not present here.
Chief Judge Everett‘s opinion in United States v. Fimmano, is instructive. 9 M.J. 256 (C.M.A.1980) (Everett, C.J., memorandum opinion). In that and several other cases, Chief Judge Everett declined to sit on certain petitions for reconsideration which were pending when he joined the Court. This Court‘s rule on reconsideration at the time was totally silent on who could vote on a petition, or whose assent was necessary. See C.MA. R. 29, 4 M.J. cxvi (1977). Chief Judge Everett stated, in words of particular relevance to the CCAs, that:
[T]he contention has been voiced that to allow reversal of a decision by the vote of succession judges after a petition for rehearing has been submitted would injure public confidence in appellate tribunals. Of course, this danger would be heightened if ... the judges had no fixed tenure on an appellate tribunal, so that the power to appoint new judges would carry with it the power to change the results of specific cases.
Fimmano, 9 M.J. at 258 (emphasis added) (citation omitted).7
Such a problem of appearances and public confidence is precisely what we have here. CCAS R. 17(b) clearly comprehends that all judges not recused will participate in any vote on en banc consideration: “The suggestion of a party for consideration or reconsideration by the Court as a whole shall be transmitted to each judge of the Court who is present for duty....” Several judges present for duty declined to sit for the initial en banc consideration yet sat for reconsideration en banc and reversed the original result.8
The refusal of a judge who is present for duty and not disqualified to participate amounts to disqualification. Once disqualified, the judge is prohibited from further participation in the case.10 See United States v. Roach, 69 M.J. 17, 20 (C.A.A.F.2010); see also United States v. Thornton, 69 M.J. 178, 178 (C.A.A.F.2010) (summary disposition); Walker v. United States, 60 M.J. 354, 358 (C.A.A.F.2004); Richard E. Flamm, Judicial Disqualification: Recusal and Disqualification of Judges § 22.1 (2d ed. 2007).
In Appellant‘s case, three judges who were present for duty at the time Witt I issued but did not participate may have participated in the vote to reconsider11 and did participate in Witt II. We hold that the failure of these judges to participate in Witt I amounted to de facto disqualification and, that they were therefore prohibited from further participation in the case.
Having found error in the participation of three judges in Witt II, we must determine whether the error prejudiced Appellant‘s substantial rights.
Although CCA judges are not “judges of the United States,” we have applied the Liljeberg factors in evaluating the participation of recused judges in the military justice system.12 See Roach, 69 M.J. at 20-21. In Roach, we found the third Liljeberg factor determinative:
First, public confidence in the military judicial process is undermined where judges act in cases from which they are recused. This is true, whether the judge‘s role is significant or minimal.... [A] military judge is recused or he is not. A military judge who acts inconsistently with a recusal, no matter how minimally, may leave a wider audience to wonder whether the military judge lacks the same rigor when applying the law.
Id.
Consistent with this precedent, we hold that the participation of disqualified judges in the reconsideration process produced a significant “risk of undermining the public‘s confidence in the judicial process,” Liljeberg, 486 U.S. at 864, and thus prejudiced Appellant‘s substantial rights.
IV. Judgment
The judgment of the United States Air Force Court of Criminal Appeals in Witt II is vacated. The case is returned to the Judge Advocate General of the Air Force for remand to an appropriate convening authority for a sentence rehearing in accordance with Witt I.