New published ACCA opinion — supervisory judge passing notes to TC during trial doesn’t result in appellate relief
ACCA’s opinion in United States v. Martinez, __ M.J. ___, No. ARMY 20080699 (A. Ct. Crim. App. Oct. 7, 2010), is available here. Judge Gifford wrote for a unanimous panel.
The first part of the opinion zaps a CA’s attempt to affirm a finding of guilty to incapacitation for duty by reason for drunkenness in lieu of a drunk on station conviction due to an error by the military judge in announcing the findings. ACCA held that incapacitation for duty isn’t an LIO of drunk on station so the CA couldn’t convert the latter to the former.
The next issue involves a challenge to the military judge’s impartiality. The top of the opinion identifies the trial judge as Thomas Molloy. It also identifies the judge who conducted the arraignment as Debra Boudreau. Yet the opinion refers to the trial judge as COL M and the arraigning/supervisory judge as COL B.
Post-trial, the DC alleged that COL M’s supervisory judge, who had originally arraigned the accused and then provided oversight during the remainder of this, COL M’s first trial as a judge, had unusual contact with the TC during the trial that created the impression that the supervisory judge was helping the prosecution. “The trial defense counsel stated that the actions of the supervisory judge left appellant with an honest belief that the trial judiciary was less than impartial towards him.” But the DC didn’t raise the issue on the record.
In a sworn affidavit, the TC “acknowledged twice interacting with the supervisory judge while appellant’s court-martial was in session and the supervisory judge was in the spectator section.” Here’s the nature of the interaction:
On one occasion, the supervisory judge passed the trial counsel a note informing him that the military judge had failed to elicit facts during the providence inquiry addressing two elements in the Specification of Charge II. The trial counsel stated that he had already noted the omission, thus the supervisory judge did not inform him of something of which he was not aware. The trial counsel further stated the supervisory judge verbally asked him to seek a recess—which he did—after which the supervisory judge accompanied the military judge into his chambers. The trial counsel stated that after a short recess, the military judge returned and proceeded to ask further questions about appellant’s pretrial agreement. The trial counsel’s affidavit also confirmed that the supervisory judge accompanied the military judge into his chambers at deliberations.
The supervisory judge and the trial judge also provided affidavits. Both denied that the supervisory judge and the trial judge ever discussed substantive issues concerning the case.
Because the DC didn’t challenge the military judge at trial, ACCA applied a plain error standard of review.
ACCA assumed without deciding that the military judge “committed plain error when he did not disqualify himself or obtain waiver, under the provisions of R.C.M. 902(a), as a result of his knowledge of the supervisory judge’s contact with the trial counsel regarding a request for recess in tandem with other facts of the case.”
But ACCA provided no relief. Applying SCOTUS’s decision in Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847 (1988), ACCA concludes: (1) the accused “suffered no injustice based on the military judge’s failure to disqualify himself”; (2) denial of relief would not produce injustice in other cases; and (3) “With full knowledge of all the facts of appellant’s case and recognizing the circumstances in appellant’s case are unlikely to recur, we conclude reversal of appellant’s conviction is not required to avoid undermining the public’s confidence in the judicial process.”
While declining to grant relief, ACCA acknowledges that the case is “troublesome.” “[R]egardless of motive, we caution members of the judiciary and counsel alike to avoid ex parte communications that might create demonstrations of bias (R.C.M. 902(b)) or a perception of bias (R.C.M. 902(a)).” “[O]nce the irregular contact between the supervisory judge and trial counsel occurred there should have been timely and full disclosure on the record and the defense counsel allowed to inquire, as appropriate, whether any basis for disqualification existed.” And “once the defense counsel observed conduct he believed may give rise to an issue under R.C.M. 902(a), he should have timely raised the issue.”