Argument Preview: Assessing the fallout from a Government motion to disqualify an appellate military judge, in United States v. Shea, No. 16-0530/AF
CAAF will hear oral argument in the Air Force case of United States v. Shea, No. 16-0530/AF (CAAFlog case page), on Wednesday, January 11, 2017, after the oral argument in Price. The case presents two issues that question the composition of the three-judge panel of the Air Force CCA that reassessed the appellant’s sentence. The genesis of these issues, however, happened in a completely different case that ended after a three-judge panel of the AFCCA reversed a conviction for forcible sodomy for factual insufficiency and then the Air Force Appellate Government Division unsuccessfully moved to disqualify one of those three judges on the basis that she might appear to be biased in favor of the Government:
I. Whether the Court of Criminal Appeals erred on remand when, over appellant’s timely objection, this case was assigned to a panel that did not include all three of the judges from the original decision.
II. Whether a reasonable observer would question the impartiality or independence of the Court of Criminal Appeals after witnessing the removal of Judge Hecker from this case on remand following the Government’s allegations that her impartiality has been impaired by the decision of the Judge Advocate General, who is himself part of the Government, to assign her to perform non-judicial additional duties within the government.
Senior Airman Shea was convicted of violations of Articles 90, 128, and 134, and was sentenced to confinement for four months, reduction to E-1, a reprimand, and a bad-conduct discharge. The convening authority disapproved the adjudged forfeitures as an act of clemency. On appeal, the Air Force CCA reversed one of the convictions and reassessed the sentence, but erroneously approved the adjudged sentence (that included the forfeitures) rather than the lesser approved sentence. CAAF summarily remanded for a new sentence reassessment to fix this (possibly typographic) error, and the CCA ultimately approved the sentence as approved by the convening authority.
But between the time that CAAF remanded Shea (September 2015) and the CCA’s second reassessment in Shea (May 2016), the CCA decided the case of United States v. Rivera, No. 38649 (A.F. Ct. Crim. App. Feb. 18, 2016) (discussed here). In Rivera a three-judge panel of the CCA reversed a conviction for forcible sodomy for factual insufficiency (side-stepping a due process challenge to the military justice system). Colonel Hecker was one of the appellate military judges on the panel that decided Rivera, though she did not author the opinion. She was also, at that time, assigned additional (administrative) duties within the Air Force military justice apparatus; a fact that became significant after the CCA found factual insufficiency in Rivera because after the decision was issued the Air Force Appellate Government Division moved to disqualify Colonel Hecker and get a fresh review of the case by a different panel.
The asserted basis for the motion to disqualify was that Judge Hecker’s other duties involving military justice (that she was assigned to do by the Government) created the appearance that she was biased in favor of the Government in the case the Government just lost:
the United States did file a motion for recusal in Rivera. The United States precisely stated, “[t]o be clear, the United States is not alleging actual impartiality on behalf of Judge H. Nor does it contend that she has advised or acted on Appellant’s case in her capacity with JAJM.” (J.A. at 68.) In fact, the United States argued that due to Judge H.’s assignment to JAJM, a division aligned with the United States Government that provides direction and guidance on prosecuting cases, a reasonable observer might question whether Judge H. was partial to the Government. (J.A. at 78-79.)
Gov’t Br at 5-6 (marks in original). This isn’t – and apparently wasn’t then – a joke.