CAAF decided the Coast Guard case of United States v. Sullivan, 74 M.J. 448, No. 15-0186/CG (CAAFlog case page) (link to slip op.), on Wednesday, August 19, 2015. The court finds that it was harmless error for the convening authority to categorically exclude flag officer from the pool of potential members, and that the military judge’s extensive personal and professional relationships with the court-martial participants does not raise an appearance of bias, affirming the decision of the Coast Guard CCA and the appellant’s convictions and sentence.

Judge Ohlson writes for the court, joined by all but Chief Judge Erdmann who dissents from the majority’s conclusion about an appearance of bias in the military judge.

The appellant is a senior Coast Guard Captain (O-6), with 27 years of service at the time of trial, who was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of a single specification of wrongful use of cocaine in violation of Article 112a. He was sentenced to pay a $5,000 fine and to be reprimanded. That sentence did not trigger automatic review by the CCA, but the Judge Advocate General of the Coast Guard referred the case to the CCA court under Article 69(d). The CCA issued an unpublished opinion last September (discussed here) affirming the findings and sentence, and then CAAF granted review of two issues:

I. Whether the Government carried its burden of proving that the convening authority’s categorical exclusion of all flag officers was harmless.

II. Whether the military judge abused his discretion in denying challenges from both parties to his impartiality based on prior personal relationships with individual military counsel, the accused, trial counsel, several members, several witnesses, and the staff judge advocate.

In Wednesday’s opinion CAAF unanimously finds that the Government has met its burden to prove that the exclusion of flag officers was harmless, and it splits 4-1 to find that a reasonable person familiar with all the circumstances of the case would not conclude that the military judge’s impartiality might reasonably be questioned.

The panel that decided appellant’s court-martial was drawn from a venire of ten members, each of whom was an O-6 like the appellant. Noting the absence of flag officers, the appellant challenged the panel as violating Article 25 (which prescribes criteria for member selection; none of which are rank). The military judge denied the motion because “he was not
convinced that ‘the convening authority’s effort to pick officers who might actually be able to serve on the court [was] improper.'” Slip op. at 4 (modification in original). The Coast Guard CCA found this conclusion to be error and that Article 25 was violated, but it found the error harmless.

The military judge also denied a joint motion seeking his recusal on the basis of his extensive contacts and relationships with the participants of the court-martial. These contacts and relationships were largely attributable to the small size of the Coast Guard, and they were extensively discussed on the record. The appellant asserted only the appearance of bias, not actual bias. The Coast Guard CCA affirmed the military judge’s refusal to recuse himself, finding that none of the relationships would cause the judge’s impartiality to reasonable be questioned.

Writing for the CAAF majority, Judge Ohlson also affirms the decisions of the military judge.

On the issue of member selection, Judge Ohlson begins by noting that the Government did not challenge the CCA’s finding of a violation of Article 25 in the categorical exclusion of flag officers, leaving only the question of harmlessness. Slip op. at 5-6. Judge Ohlson summarizes the appellant’s arguments for harm as follows:

Appellant raises two theories for reversal because of this categorical exclusion: (1) the exclusion created an appearance of unfairness; and (2) the Government did not meet its burden of establishing the exclusion was harmless.

Slip op. at 6. The first argument is rejected outright, with Judge Ohlson writing that “there is no appearance of an unfair panel in this case.” Slip op. at 6. This rejection is based upon three pragmatic conclusions: (1) that the convening authority did not otherwise deviate from the Article 25 criteria; (2) that there is no indication that the members were biased; and (3) that the convening authority did not have an improper motive:

[W]e find no basis to conclude that the convening authority selected the members on any factors other than their “age, education, training, experience, length of service, and judicial temperament.” Article 25(d)(2), UCMJ. Further, the record provides no indication that these panel members failed to fully, carefully, and appropriately consider Appellant’s case in arriving at a verdict and sentence. Moreover, the convening authority’s motivation in excluding flag officers from this case was not to stack the panel against Appellant. Rather, the convening authority relied on his experience in concluding that the flag officers would not be available to actually sit on the panel and hear the case.

Slip op. at 6-7.

For the second argument, Judge Ohlson finds the exclusion to be harmless. Interestingly, however, Judge Ohlson cites to the seminal member selection appearances case of United States v. Kirkland, 53 M.J. 22, 24 (C.A.A.F. 2000), only once. Slip op. at 5. Earlier this term, in United States v. Ward, 74 M.J. 225 (C.A.A.F. Jun. 11, 2015) (CAAFlog case page), CAAF reconciled the member selection precedents of Kirkland and United States v. Bartlett, 66 M.J. 426 (C.A.A.F. 2008), to hold that:

Simply put, an accused must be provided both a fair panel (Bartlett) and the appearance of a fair panel (Kirkland).

Ward, 74 M.J. 225, __ (slip op. at 10). CAAF also held that:

the holding in Kirkland focused on the “unresolved appearance that potentially qualified court members . . . were excluded, [and therefore] reversal . . . is appropriate to uphold the essential fairness and integrity of the military justice system.

Ward, 74 M.J. 225, __ (slip op. at 12-13) (quoting Kirkland, 53 M.J. at 25) (omissions and modification in original). The member selection issue in this case seems to implicate only the Kirkland standard (or, at least, primarily the Kirkland standard), as the appellant asserted only the appearance of unfairness. Yet Judge Ohlson’s opinion in Sullivan (with which Chief Judge Erdmann concurs on the member selection issue) does not directly consider the Kirkland standard of whether there is an unresolved appearance that potentially qualified members were excluded. Rather, Judge Ohlson focuses on the fact that the panel as selected appears to have been fair and impartial:

This point is underscored by the fact that the members stated that they would be impartial during voir dire; they were active participants throughout the trial who posed unbiased questions during the course of the trial; they deliberated over the course of three days before rendering a verdict, which included an acquittal of one charge; and they imposed a lenient sentence. In light of these factors, we conclude that the Government has met its burden of establishing that the categorical exclusion of flag officers was harmless.

Slip op. at 7-8. Judge Ohlson also repeatedly cites to Bartlett. See slip op. at 7; slip op. at 8, n.5.

This seems to significantly blur what was a rather clear line drawn in Ward distinguishing issues of actual unfairness in member selection (to be resolved by application of the Bartlett factors) from the mere appearance of unfairness (to be resolved by application of the Kirkland standard). CAAF’s functionally-unanimous decision in Sullivan muddies the analysis to be applied in a case raising only the appearance of unfairness. However, this part of the decision is also superfluous, as CAAF’s conclusion that there is no appearance of an unfair panel would seem to obviate any need for a harmlessness analysis (because the absence of an appearance of unfairness cannot possibly be harmful).

Turning to the issue of the military judge’s refusal to recuse himself, Judge Ohlson again notes that the appellant’s claims are predicated on only an appearance of bias, and not actual bias. The majority applies well-settled law to analyze whether the military judge should have recused himself in this case:

We apply an objective standard for identifying an appearance of bias by asking whether a reasonable person knowing all the circumstances would conclude that the military judge’s impartiality might reasonably be questioned. Hasan, 71 M.J. at 418. Recusal based on an appearance of bias “is intended to ‘promote public confidence in the integrity of the judicial process.’” Id. (quoting Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 858 n.7 (1988)). However, this “appearance standard does not require judges to live in an environment sealed off from the outside world.” United States v. Butcher, 56 M.J. 87, 91 (C.A.A.F. 2001). Although a military judge is to “broadly construe” the grounds for challenge, he should not leave the case “unnecessarily.” R.C.M. 902(d)(1) Discussion.

Slip op. at 15-16. In a fact-intensive inquiry, Judge Ohlson concludes that the military judge did not err in failing to recuse himself, for five reasons. First, the military judge specifically disclaimed any influence from his associations with the court-martial participants. Slip op. at 17. Second, the appellant has failed to identify any evidence of improper influence. Slip op. at 17. Third, the appellant has not identified any rulings that indicate an appearance of bias. Slip op. at 18. Fourth, personal relationships are not per se discrediting. And finally, the cumulative effect of the relationships is not so great as to undermine public confidence:

[I]n the instant case the number and type of contacts that the military judge had with the participants in the court-martial appear to simply be the natural consequence of the military judge’s length of service in the relatively small Coast Guard, and we do not find a sufficient basis to conclude that a reasonable person familiar with all the circumstances in this case would conclude that the “military judge’s impartiality might reasonably be questioned.”

Slip op. at 19 (quoting R.C.M. 902(a)).

Accordingly, the findings and sentence are affirmed.

Chief Judge Erdmann’s partial dissent focuses on the majority’s conclusion on the issue of judicial bias. He finds that reversal is required based on the appearance of bias because “At some point, too much is simply too much.” Diss. op. at 1. He explains:

It is the third Liljeberg factor that is relevant to this inquiry. Is there a risk of undermining the public’s confidence in the military justice system where the judge knows almost everyone in the proceeding, is in the same promotion pool as the accused, and has contacted his boss, who was a potential witness, to give him a “heads-up”? I believe there is.

Diss. op. at 6.

CAAF’s failure to directly consider the Kirkland standard of an unresolved appearance that potentially qualified court members were excluded in this case (where the appellant asserted only the appearance of unfairness in the member selection process) takes some clarity away from the court’s recent decision in Ward. However, that CAAF also found no predicate appearance of unfairness makes the lack of a direct Kirkland analysis less significant. Ultimately, the unique facts of this case – a very senior accused, a very small service, and a genuine concern by the convening authority about the availability of senior officers – make it a hard case, and hard cases can make bad law.

Case Links:
CGCCA opinion
Blog post: Analysis of CGCCA opinion
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

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