Clearing the High Hurdle of Judicial Recusal: Reforming RCM 902A

AuthorSteve D. Berlin
PositionJudge Advocate, U.S. Army
Pages223-259
2010] JUDICIAL RECUSAL: REFORMING RCM 902(a) 223
CLEARING THE HIGH HURDLE OF JUDICIAL RECUSAL:
REFORMING RCM 902(a)
MAJOR STEVE D. BERLIN
An independent judiciary is indispensable to our system
of justice. Equally important is the confidence of the
public in the autonomy, integrity and neutrality of our
military judiciary as an institution. Army judges must
strive to maintain the dignity of judicial office at all
times and avoid both impropriety and the appearance of
impropriety in their professional and personal lives.1
I. Introduction
The military justice system should be efficient and transparent in
order to maintain the good order and discipline of servicemembers.2
Likewise, a transparent system helps maintain public confidence.3 To
enhance the military justice system’s efficiency and transparency with
regard to military judge recusal, the President should amend Rule for
Courts-Martial (RCM) 902(a).
Judge Advocate, U.S. Army. Presently assigned as Brigade Judge Advocate, 1st
Brigade Combat Team, 82d Airborne Division, Fort Bragg, North Carolina. LL.M.,
2009, The Judge Advocate General’s School, Charlottesville, Virginia; J.D., 2004,
University of Florida; B.S., 1997, U.S. Military Academy. Previous assignments include
Office of the Staff Judge Advocate, Fort Knox, Kentucky, 2005–2008 (Military Law
Attorney 2008, Chief, Military Justice, 2006–2008, Trial Counsel, 2005–2006); Field
Artillery Officer, 2d Battalion, 3d Field Artillery, Giessen, Germany, 1998–2001
(Battalion Adjutant, Rear Detachment Executive Officer, 2000–2001, Platoon Leader,
1999, Company Fire Support Officer, 1998). Member of the Florida Bar. This article
was submitted in partial completion of the Master of Laws requirements of the 57th
Judge Advocate Officer Graduate Course.
1 Memorandum from The Judge Advocate General, U.S. Army, to Army Judges, subject:
Army Code of Judicial Conduct (16 May 2008) [hereinafter Army Code of Judicial
Conduct Memo].
2 See MANUAL FOR COURTS-MARTIAL, UNITED STATES pt. I, pmbl. para. 3 (2008)
[hereinafter MCM] (stating that one of the purposes of military law is to maintain good
order and discipline); see also U.S. DEPT OF ARMY, REG. 27-10, MILITARY JUSTICE para.
5-21 (16 Nov. 2005) [hereinafter AR 27-10] (establishing a quick timeline for processing
courts-martial). Implied in efficiently maintaining good order and discipline is that
servicemembers subject to the Uniform Code of Military Justice (UCMJ) will have a
transparent system for them to readily see justice.
3 In drafting the UCMJ, Congress was concerned with maintaining a positive imagine in
the public’s esteem and proscribed service discrediting conduct. MCM, supra note 2, pt.
IV, ¶ 60c(3).
224 MILITARY LAW REVIEW [Vol. 204
Recent developments in military jurisprudence demand a closer look
at a once-sacrosanct arena: judicial impartiality. In May 2008, the Court
of Appeals for the Armed Forces (CAAF) addressed a military judge’s
recusal duty for implied bias in United States v. Greatting4 and United
States v. McIlwain.5 These companion cases involved situations in
which military judges made statements that would cause someone to
question their impartiality as they sit on related cases.6 Furthermore,
they raise the question of when judicial economy yields to the perception
that a military judge is no longer impartial.
This article examines the military judge’s sua sponte duty of recusal
when an observer would likely believe the judge lacks impartiality. It
begins by exploring the basic rules governing judicial recusal and how
appellate courts have historically treated cases where judges may have
demonstrated a lack of impartiality. It then looks at the increased
oversight from appellate courts in the recent term. Finally, this article
discusses various theories that would improve the courts’ treatment of
potential judicial bias.
This article concludes that a party should be able to ask an
independent judge to review its challenge to a military judge’s
impartiality. Instead of allowing appellate review as the only viable
alternative for reviewing a military judge’s recusal ruling, a party should
be able to appeal to the Chief Circuit Judge of the jurisdiction. The
Chief Circuit Judge would detail a new military judge to review the
initial recusal motion, with the additional review balancing the concerns
of the party moving to recuse the military judge and adding only minor
delay into the court-martial process.
II. The High Hurdle of Proving Judicial Bias
In its infancy, the Uniform Code of Military Justice (UCMJ) was
seen as a progressive criminal justice statute that gave strong protections
to servicemembers.7 The military justice system continues to provide
4 66 M.J. 226 (C.A.A.F. 2008).
5 66 M.J. 312 (C.A.A.F. 2008).
6 Greatting, 66 M.J. at 229; McIlwain, 66 M.J. at 313.
7 NATL INST. OF MILITARY JUST., REPORT OF THE COMMISSION ON THE 50TH
ANNIVERSARY OF THE UNIFORM CODE OF MILITARY JUSTICE 2 (May 2001) [hereinafter
COX COMMISSION], available at http://www.wcl.american.edu/nimj/documents/Cox_
Comm_Report.pdf. The Cox Commission begins its report by highlighting the
2010] JUDICIAL RECUSAL: REFORMING RCM 902(a) 225
many protections missing in other state and federal systems.8 To ensure
that servicemembers receive these rights, an impartial judiciary must
oversee the military justice system.9
The system is not without its critics, however. In the fiftieth
anniversary of the UCMJ, the National Institute of Military Justice
(NIMJ) created a “blue-ribbon panel that examined the military justice
system.”10 This led to the Cox Commission, named after Chief Judge
Walter Cox of the CAAF, which concluded that the military judiciary
should have greater independence to “preserv[e] public confidence in the
fairness of courts-martial.”11 To determine perceived impartiality of the
judges, this article first turns to the underlying rules.
A. The Basic Rule Provides Little Guidance on Determining a Military
Judge’s Bias
Although a practitioner should be able to turn to the “rules” to find
an answer, the RCM offer little help in evaluating the potential bias of a
development of the UCMJ in its first fifty years. Id.
8 These protections include automatic appellate review, Care inquiry, and access to
expert witnesses paid at Government expense. Uniform Code of Military Justice (UCMJ)
art. 66 (2008); United States v. Care, 40 C.M.R. 247 (C.M.A. 1969); MCM, supra note 2,
R.C.M. 703.
9 See THE FEDERALIST No. 78 (Alexander Hamilton) (advocating for a strong,
independent judiciary “to secure a steady, upright, and impartial administration of the
laws”).
10 H.F. “Sparky” Gierke, The Thirty-Fifth Kenneth J. Hodson Lecture on Criminal Law,
193 MIL. L. REV. 178, 193 (2007). See also COX COMMISSION, supra note 7, at 2. The
Cox Commission was led by Judge Walter Cox of South Carolina Supreme Court. Id. at
4–5. Judge Cox is a former member of the Court of Military Appeals and the Court of
Appeals for the Armed Forces (CCAF). Id. Three other members were retired Air Force
and Navy Judge Advocates, including a former Judge Advocate General of the Navy. Id.
A fifth member serves as a law professor and a member of the Rules Advisory
Committee to the CAAF. Id.
11 COX COMMISSION, supra note 8, at 9. But see Lieutenant Colonel Theodore Essex &
Major Leslea Tate Pickle, A Reply to the Report of the Commission on the 50th
Anniversary of the Uniform Code of Military Justice (May 2001): “The Cox
Commission, 52 A.F. L. REV. 233, 256–58 (2002) (criticizing the Cox Commission for
its failure to demonstrate cases lacking judicial impartiality, to enumerate powers
possessed by civilian judges that are not held by military judges, and to provide
references other than “fringe groups”). On the contrary, the Cox Commission listed
Citizens Against Military Justice, the United States Council on Veterans Affairs, Sailors
United For Self Defense, American Gulf War Veterans Association, and
www.militarycorruption.com. COX COMMISSION, supra note 7, at 3 n.5.

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