[Disclosure:  I’m one of SrA Roach’s appellate defense counsel]

CAAF today reversed the Air Force Court for a second time in what is becoming the military justice appellate system’s version of Jarndyce v. JarndyceUnited States v. Roach, __ M.J. ___, No. 07-0870/AF (C.A.A.F. May 10, 2010).  Judge Baker wrote for a unanimous court.

Chief Judge Wise of the Air Force Court recused himself when his public remarks about the case became in issue following the first remand from CAAF.  He then sent an e-mail to the Judge Advocate General of the Air Force’s executive recommending that Senior Judge Francis be designated the chief judge for purposes of the case.  The same day, the Judge Advocate General designated Senior Judge Francis as chief judge and Senior Judge Francis selected the other members of the panel that heard the case and ultimately wrote the decision affirming the findings and sentence.

CAAF held:

The threshold question asks whether the chief judge of a court of criminal appeals may recommend to the Judge Advocate General an acting chief judge for a case in which the chief judge is recused. For the reasons stated below we answer this question in the negative, and we vacate the judgment of the CCA.

Id., slip op. at 5,

CAAF reasoned, “Once recused, a military judge should not play any procedural or substantive role with regard to the matter about which he is recused.” Id., slip op. at 6. Quoting its decision from Walker v. United States, 60 M.J. 354, 358 (C.A.A.F 2004), CAAF stated, “When a judge is recused, the judge should not take action to influence the appointment of his or her replacement.” Roach, slip op. at 6.

Finding error, CAAF tested for prejudice, which it found.  Id., slip op. at 8.  CAAF noted that one factor the Supreme Court evaluates in determining whether to grant relief in such situations is “the risk of undermining the public’s confidence in the judicial process.”  Id. (quoting Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 864 (1988)).  This portion of the analysis concluded:

The appearance of impartiality may be especially important in the military justice context. From an outsider’s perspective, it might well appear that at a court-martial and at the CCA, the critical players are invariably uniformed officers, usually if not always from the same service, and in many cases drawn from what are relatively small communities of military judge advocates. In this context, it is all the more important for participants to engage in their assigned duties without blurring legal and ethical lines; however well intentioned.

Id., slip op. at 9-10.

CAAF then proceeded to address the other three granted issues in the case.  First, it addressed AFCCA’s holding that it was limited to a comparison of the adjudged, rather than approved, sentences in conducting a sentence disparity analysis.  CAAF wrote: 

“The Courts of Criminal Appeals are required to engage in sentence comparison only ‘in those rare instances in which sentence appropriateness can be fairly determined only by reference to disparate sentences adjudged in closely related cases.'” United States v. Sothen, 54 M.J. 294, 296 (C.A.A.F. 2001) (quoting United States v. Ballard, 20 M.J. 282, 283 (C.M.A. 1985)).  Adjudged sentences are used because there are several intervening and independent factors between trial and appeal – including discretionary grants of clemency and limits from pretrial agreements – that might properly create the disparity in what are otherwise closely related cases.  In contrast, when the CCA is exercising its power over sentence appropriateness generally, it may consider both adjudged and approved sentences.

Id., slip op. at 10.  If I construe this correctly, CAAF is saying that a sentence disparity analysis must compare the adjudged sentences but that a Court of Criminal Appeals is free to consider disparity in approved sentences if it wishes to.

CAAF disposed of an appellate discovery issue by determining that it’s moot, finding that the documents the appellant sought won’t be relevant to the issue that remains under litigation upon remand. 

Finally, CAAF noted the possibility that “a showing of ‘malicious delay’ on the part of an appellate judge might” influence a post-trial delay analysis, but declined to rule on that issue, finding that no such malicious delay occurred in this case.

Roach now returns to AFCCA for a third Article 66(c) review.

14 Responses to “CAAF reverses AFCCA decision due to former Chief Judge’s post-recusal recommendation of his replacement”

  1. JWS says:

    I have not read much of the CAAF ouevre, buts I am sure Dickens is a better read nonetheless.

  2. Anonymous says:

    I guess the old saying still stands…it takes a lot to kill a roach!

  3. Mike "No Man" Navarre says:

    Is there any precedent in military justice for a Chief Judge appointing his successor? I can’t believe this would ever happen again so this case won’t likely be cited again.

  4. Ama Goste says:


    Walker’s “order of succession” memo comes to mind, but you’re more familiar with that case than I am.

  5. Anonymous says:

    I’m glad the court recognizes the perception that these “judges” are JAGs filling a billet and some of them really need the oversight.

  6. retort says:

    I really like the full e-mail quote. This opinion (along with plenty of CCA opinions from the horse’s mouth) is good fodder for abolishing or “civilianizing” the CCAs.

  7. Anon says:

    And, at the end of the day, after all of this appellate litigation, apparently the only REAL appellate issue is sentence disparity???? Wow… what a waste. The rest of this is invented or invited error.

  8. Christopher Mathews says:

    At the end of the day, to borrow a phrase from Anon 1514 below, CAAF was unable to discern any prejudice to the appellant nor any evidence that Chief Judge Wise influenced the appellate panel on remand. While the court was clearly and properly sensitive to the “appearance of impartiality” as seen from “an outsider’s perspective,” it’s a substantial reach to say this case justifies abolishing the CCAs.

  9. Dew_Process says:

    I guess it would be too simple to follow the other federal Circuit Courts of Appeal – if the CJ is absent or recused, the next most senior judge becomes “acting” CJ.

    Equally as troublesome is the fact that the replacement CJ, Judge Francis, was allowed to hand-pick his “panel.” That smells just as bad imho.

  10. Christopher Mathews says:

    “Seniority” is an interesting concept — at least when I served, seniority was determined not by rank but by longevity on the court. The exception was that the chief judge was designated by TJAG and senior regardless of date of rank or how long he or she served on the court.

    I’m not sure whether Judge Francis was senior to the other members of the Court when TJAG designated him as acting chief judge. One complicating factor may have been the existence of conflicts that kept other judges who might have been senior to him from hearing the case. I do not know if there were such conflicts, but it would not surprise me if there were.

  11. Anonymous says:


  12. Article16 says:

    Haven’t you ever seen an appellate decision based on whether an appellant is entitled to a single additional day of confinement credit?
    Errors are errors. Diligence is diligence. In some cases, if an SJA or CA were at all inclined to give credence to allegations of error made at clemency, then the avoidance of waste is in their hands–if it’s “invited” it’s they who invited it. Personally, I think appellate litigation over non-REAL issues is great.

  13. Cap'n Crunch says:

    No offense intended to anyone, however, it is my firm and unequivocal belief that the service CCAs have, particularly in the last 20 years or so, substantially turned away from justice, and instead turned themselves into bodies that correct pen and ink changes or take administrative action on cases, but afford no substantial relief. There are exceptions. NMCCA lately seems to be such an exception.

    And no offense is directed to Judge Matthews, but the Air Force Court has particularly been results-oriented and pro-government. It is well known (though perhaps not well advertised for good reason) that the best (and usually only) chance of relief, where you have good appellate issues, is to go to CAAF. The only caveat I will make to this trend, seems to be in the death penalty arena. For some reason (and I have my own theory on why this is), the service courts do seem to bend over backwards to get those right (I will withhold judgment on AFCCA until I see the Witt decision — though I am frankly unaware of any ‘good’ or meaty issues in that case — but insiders working on it would know more).

    Which begs the question: why not do away with the service courts, replace them with a lower court of appeals that is not made up of active duty JAGs (but could have retired JAGs unlike CAAF judges), appoint them for 15 year terms, and let them handle the functions that the service courts handle now?

  14. Anonymous says:

    I wish we still had the option of giving a little “thumbs up” icon.