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.”

16 Responses to “New published ACCA opinion — supervisory judge passing notes to TC during trial doesn’t result in appellate relief”

  1. ksf says:

    Can’t say that I have ever practiced in front of the supervisory judge, but suffice it to say, I could testify as to her reputation in the legal community, which would be, “She has the reputation of being a Government hack from way back.”

  2. Anon says:

    Was it plain error or a novel form of UCI?

  3. Bill C says:

    COL B will not be missed by the defense bar during her retirement. She is truly a government hack.

  4. Anonymous says:

    Dumb and dumber. “Where do we get such ‘men’?”

  5. huh says:

    I’m sorry. These are supposed to be real courts now. See Denedo. This smells like fake court. G/V/R.

  6. John O'Connor says:

    “Troublesome” indeed.

    Still not sure the accused should get any relief. He pleaded guilty and was found guilty to some of the offenses to which he pleaded (by the way, where was the supevising judge’s note to the TC when the MJ screwed up findings???). I’m not a big fan of relief where there was no apparent prejudice just bcause of a judicial snit (see, e.h., screwed up CA actions) or to make a point about egregious conduct (which, because of billet changes almost never has any effect on those that erred).

    All that said, I imagine new judges and reservists often take a recess and call back to chambers to have someone walk them through an unexpected hiccup. And, when you come right down to it, that’s sort of the same thing that happened here substantively. But you just CAN’T use the TC as the conduit between the supervisory judge and the MJ. It would be better to have the supervisory judge do the throat slit sign or something to tell the MJ to take a break.

  7. Mike "No Man" Navarre says:

    Judge Molloy is the IO in the Afghan killings Morlock investigation. I guess there isn’t much harm one can do as an IO and I would assume Judge Molloy is now a much more seasoned jurist. But I think the teaching point is there’s gotta be a better way to mentor than during a case if you’re the Chief Circuit judge.

  8. John O'Connor says:

    I heard the defense “won” that hearing.

  9. publius says:

    This one’s proof that even God is not perfect. God created CDR Maksym for a reason– to write a decision in this this case. But then God also put this case in the Army. That’s a blunder on God’s part. Unless, oh no…is CDR Maksym headed to CAAF?

  10. Anonymous says:

    well apparently you can, because no relief is granted and you and the court think no relief should be granted, so you can use the TC as a conduit.

    Like the exclusionary rule, either these things are important enough that a guilty person goes free or they aren’t. If they aren’t, then quite frankly the court and we should quit the impotent finger wagging about “Troublesome” or what you “can’t” do.

    I mean if folks can come up with a different manner in which to fix these problems other than relief for accused (which can be simply a month off or something less than full reversal) then let’s hear it.

    But it gets old seeing CCAs talk about something as being troublesome but not UCI or bad lawyering but not IAC.

  11. Anon says:

    Like give the Bailiff a note to give to the MJ? Or give the note to the DC? Or….. what JO’C says!

  12. John O'Connor says:

    Or like Animal House

    “Cough Cough Recess Cough Cough.”

    If you believe MJs try not to err, then you don’t need to free a clearly guilty man who pleaded guilty. Publicizing the error is enough. Tossing a UA conviction isn’t going to get the attention of anyone who wouldn’t be swayed already by reading the opinion and its criticism of what happened. It would just be the appellate version of a temper tantrum.

  13. John O'Connor says:

    Assuming he has 20 years of active service, isn’t a CCA judge ineligible for CAAF under the “Baum Rule”?

  14. publius says:

    I think that’s right. We’re saved.

  15. huh says:

    Pretty sure Mr. “Pray tell, counsel, did you respond to my learned colleagues that…?” isn’t headed to CAAF anytime soon. Or any court.

  16. Ama Goste says:

    You’re right, JOC. Here’s the quote from CAAF’s page.

    Article 142 of the UCMJ provides that each judge “shall be appointed from civilian life.” To underscore the civilian nature of the Court, the statute provides that a person who has retired from the armed forces after 20 or more years of active service “shall not be considered to be in civilian life.”

    There have been CAAF judges with reserve retirements (Stucky, for example), but my understanding is that they’re not allowed to draw retired pay while on the bench.