CAAF reverses AFCCA decision due to former Chief Judge’s post-recusal recommendation of his replacement
[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. Jarndyce. United 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.
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.