An appellant challenges a military judge’s decision to hold civilian defense counsel (but not trial counsel) in contempt
In an unpublished decision in United States v. Marsh, No. 38688 (A.F. Ct. Crim. App, Apr. 19, 2016) (link to slip op.), a three-judge panel of the Air Force CCA rejects an appellant’s claim that the military judge should have sua sponte recused herself because of her hostility toward his civilian defense counsel. Specifically, the appellant asserted that:
the military judge took a hostile tone toward his civilian defense counsel, especially when compared to her discussions with the trial counsel. Appellant bases his assertion on the military judge electing to hold his civilian defense counsel in contempt, while not taking a similar action against the trial counsel.
Slip op. at 3 (emphasis added). The civilian counsel is not identified in the CCA’s opinion and no punishment was imposed in connection with the finding.
The contempt finding was based on the civilian counsel’s failure to abide by court-ordered milestones. Trial counsel also failed to follow the milestones, but the military judge found that the trial counsel’s failure was negligent while the civilian counsel’s failure was willful. The CCA’s opinion notes numerous such failures, but the following was likely the basis for the contempt finding:
After Appellant pleaded guilty to some of the alleged misconduct, the Government attempted to prove up the remaining offenses involving violations of a general regulation. After the Government rested, the civilian defense counsel made several motions, to include challenging the wording of the specifications and arguing that the duties imposed by the regulation were unconstitutionally vague.
There was nothing apparent in either of these motions that suggested why the Defense was unable to provide earlier notice to the court. When asked about this by the military judge, the civilian defense counsel responded that he did not comply with the deadlines because he believed that doing so would be harmful to Appellant by providing the Government an opportunity to remedy the error.
Slip op. at 4-5. The opinion does not explain how the appellant might have been prejudiced by the timely filing of a motion (and I’m having a hard time imagining it).
The CCA finds no error because “the military judge explained, and the record supported, why the military judge elected to pursue contempt proceedings against the civilian defense counsel but not the trial counsel.” Slip op. at 5.
Notably, this issue was raised personally by the appellant and for the first time on appeal. “Failure of the defense to challenge the impartiality of a military judge may permit an inference that the defense believed the military judge remained impartial.” United States v. Burton, 52 M.J. 223, 226 (C.A.A.F. 2000).