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

• Author: Steve D. Berlin
• Position: Judge Advocate, U.S. Army
• Pages: 223-259

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].

2See 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.DEP’T 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

466 M.J. 226 (C.A.A.F. 2008).

566 M.J. 312 (C.A.A.F. 2008).

6Greatting, 66 M.J. at 229; McIlwain, 66 M.J. at 313.

7 NAT’L 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.

9See 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, at3 n.5.