An Air Force senior trial counsel and a victims’ counsel conspire to prevent a military judge from presiding over sexual assault trials, succeed, win reversal of a sexual assault conviction
The #2 Military Justice Story of 2015 was Government Bloopers, because a handful of cases that year portrayed military prosecutors and Government appellate attorneys as most-competent at sabotaging themselves.
Among those cases was CAAF’s summary rejection of the prosecution appeal in United States v. Bowser, 74 M.J. 326 (C.A.A.F. Mar. 25, 2015) (CAAFlog case page). Bowser involved sexual assault charges that were dismissed with prejudice because the prosecution refused to permit an in camera review of their witness interview notes. In 2015, upon receiving the prosecution appeal and accompanying brief, CAAF rejected the brief because it failed to address possible controlling or adverse authority, and the court ordered the Government to “file an amended brief addressing the deficiency noted.” It then rejected the certified issue and affirmed the dismissal of the charges in a summary disposition.
At least one Air Force prosecutor – and an ideological fellow-traveler in the Air Force Special Victims’ Counsel program – didn’t like that. And so they conspired to remove the military judge who dismissed the charges in Bowser from his judicial assignment. We know this because they ultimately succeeded in removing the judge, defense counsel figured it out, it was litigated, and now as a result the Air Force CCA reverses the findings of a general court-martial involving four separate alleged victims of sexual assault, and the sentence that included a whopping 29 years of confinement.
Senior Airman (E-4) Vargas was convicted by a general court-martial composed of members with enlisted representation of two specifications of attempted abusive sexual contact, three specifications of sexual assault, two specifications of abusive sexual contact, and two specifications of assault consummated by a battery, in violation of Articles 80, 120, and 128. “The facts underlying the charges in this case pertain to sexual and physical assault involving four victims.” Slip op. at 3. Vargas was sentenced to confinement for 29 years, reduction to E-1, and a dishonorable discharge.
The military judge who presided over Vargas’ trial was Air Force Colonel (Col) Donald R. Eller Jr., who at the time was the Chief Circuit Military Judge in Europe. The CCA reverses Vargas’ convictions because it finds that Col Eller was disqualified from presiding over the trial because he should have recused himself. But the real issue isn’t so much Col Eller’s failure to recuse himself as it is the removal of a different military judge from the case: Lieutenant Colonel (Lt Col) CL.
Lt Col CL is identified only by his initials in the CCA’s opinion in Vargas. But the opinion also identifies him as the military judge who dismissed the charges in Bowser. And the CCA’s opinion in Bowser (73 M.J. 889), in accordance with normal practice, identifies the military judge by name: Christopher F. Leavey.
In Vargas, Judge Mink explains explains that some Air Force attorneys became dissatisfied “with Lt Col CL serving as a military judge in cases involving Article 120, UCMJ, allegations,” after his action in Bowser. Slip op. at 5. As a result:
After Lt Col CL’s decision in Bowser, the STC [Senior Trial Counsel] and one of the two special victims’ counsel (the SVC) stationed at Ramstein Air Base (AB), Germany, began to discuss ways to prevent Lt Col CL from hearing cases involving Article 120, UCMJ, allegations, or to have him removed from the bench entirely. The STC and the SVC had these discussions with each other and related discussions with other individuals within the Air Force Judge Advocate General’s (JAG) Corps, including the Third Air Force (3 AF) Staff Judge Advocate (SJA), the 31st Fighter Wing (31 FW) SJA, Air Force Government Trial and Appellate Counsel Division (JAJG) personnel, United States Air Forces in Europe Office of the SJA (USAFE/JA) personnel, and the Air Force Associate Chief of the SVC Division. Following a visit by the 3 AF SJA to the Ramstein SVC office in July 2014, the SVC asked the other Ramstein special victims’ counsel, who was then an active duty Captain (hereinafter the “former SVC”), “not to discuss or mention this meeting as it could be improper UCI, or words to that effect, and [the SVC] didn’t want defense or others to know there [was] a possible concerted effort to try and get Lt Col [CL] off the bench through ‘loss of confidence.’”
Slip op. at 5. None of these various Air Force judge advocates are identified by name or initials, but their concerted effort worked. “On 25 November 2014, Lt Col CL was removed from four cases involving Article 120, UCMJ, allegations, including Appellant’s case. . . . Lt Col CL remained detailed to one case involving at least one Article 120, UCMJ, allegation, in which he had already made pretrial rulings.” Slip op. at 6.
Lt Col Leavey was replaced as military judge in Vargas by Col Eller, who was Lt Col Leavey’s supervisor. The Defense then “submitted a motion for [Col Eller] to recuse himself from sitting as the military judge on [Vargas’] case and a supplemental motion to dismiss based on UCI due to the removal of Lt Col CL as the military judge.” Slip op. at 4. Judge Mink explains:
SDC submitted a motion for the military judge to recuse himself from sitting as the military judge on Appellant’s case and a supplemental motion to dismiss based on UCI due to the removal of Lt Col CL as the military judge in Appellant’s case.
Slip op. at 5.
In the end, however, Col Eller neither recused himself nor found unlawful influence. The CCA finds that the recusal ruling was error, and reverses the convictions (with a rehearing authorized).
Judge Mink explains that under R.C.M. 902(b), recusal is required:
(1) Where the military judge has … personal knowledge of disputed evidentiary facts concerning the proceeding.
(3) Where the military judge has been or will be a witness in the same case ….
Slip op. at 9 (marks in original). These circumstances are raised by the facts of this case because:
It is apparent from the record of trial that the military judge had personal knowledge of the circumstances of the removal of Lt Col CL as the original military judge in Appellant’s case. . . . Since the military judge was the person who removed Lt Col CL from Appellant’s case, the military judge was obviously a potential witness on the issue of the alleged UCI, regarding his own involvement with the removal decision as well as any knowledge he had regarding the Chief Trial Judge’s role in the removal. Consequently, the military judge was placed in the position of having to impartially determine whether he or his immediate supervisor, the Chief Trial Judge, had engaged in UCI or had been unlawfully influenced by the alleged removal effort.
Slip op. at 9-10. Furthermore:
It is also apparent that the military judge had personal knowledge of the alleged effort to remove Lt Col CL from cases involving Article 120, UCMJ, allegations, before removing Lt Col CL from Appellant’s case. . . .
The evidence presented by the Defense to the trial court on the UCI motion clearly established that discussions were occurring regarding an effort to have Lt Col CL removed from the trial bench or at least from cases involving Article 120, UCMJ, allegations based on dissatisfaction by some about Lt Col CL’s actions in prior cases involving Article 120, UCMJ, allegations. The extent of those discussions or effort was not completely established, but what is clear from the record is that after Lt Col CL himself notified the military judge of the information he had learned about discussions pertaining to the alleged effort to have him removed, Lt Col CL was, in fact, removed from four cases involving Article 120, UCMJ, allegations by the military judge. The reason or reasons for Lt Col CL’s removal are not clear, despite what Lt Col CL had been told about why he was removed, but it is only reasonable to conclude that the military judge knew precisely why Lt Col CL was removed from Appellant’s case.
Slip op. at 10.
Judge Mink also explains that:
“[A]ny conduct that would lead a reasonable [person] knowing all the circumstances to the conclusion that the judge’s impartiality might reasonably be questioned is a basis for the judge’s disqualification.” United States v. Kincheloe, 14 M.J. 40, 50 (C.M.A. 1982) (internal quotation marks and citation omitted).
Slip op. at 9 (marks in original). This is also raised by the facts of this case because:
Taken as a whole in the context of this trial, we find that the appearance of the court-martial’s impartiality was put into doubt by the military judge’s actions. Against the backdrop of the alleged effort being made by some to re-move a qualified military judge from a particular category of cases based on his unpopular actions in such cases, we find that a reasonable person observing Appellant’s court-martial would have substantial reason to question the military judge’s impartiality given his role in removing Lt Col CL from Appellant’s case and in having to assess whether he or the Chief Trial Judge had acted improperly in doing so. We also find that such doubts spring from the military judge’s status as a witness in this case, having knowledge of the disputed evidentiary facts about Lt Col CL’s removal from the case and the potential influence of the alleged removal effort. As a result, we find that the military judge abused his discretion by failing to recuse himself under R.C.M. 902(a).
Slip op. at 11.
The CCA concludes that reversal is required “to avoid undermining the public’s confidence in the military judicial process.” Slip op. at 12. That’s a conclusion that’s likely to make everyone unhappy, because:
- Vargas faces another trial;
- The alleged victims must testify anew;
- The Senior Trial Counsel, Special Victims’ Counsel, and other associated Air Force judge advocates who caused Lt Col Leavey’s removal from sexual assault cases also caused a major case to be reversed; and
- The public is left wondering if anyone will actually be held accountable.