An Army military judge’s “personal and emotionally intimate relationship” with the wife of a junior Army judge advocate “erodes public confidence in the judiciary and the military justice system” and causes the reversal of a general court-martial
Last week the Army CCA issued this published, unanimous, en banc opinion in United States v. Springer, __ M.J. __, No. 20170662. Writing for the court, Judge Schasberger give us the bottom line up front:
At the time of appellant’s court-martial, the presiding military judge engaged in an inappropriate relationship with the wife of one of the prosecuting attorneys assigned to appellant’s case. This inappropriate relationship created the appearance that the military judge lacked impartiality in appellant’s court-martial. Under the circumstances of this case, we are compelled to set aside the findings of guilt and sentence and authorize a rehearing.
Slip op. at 1. The military judge is named in the CCA opinion: Lieutenant Colonel Richard Henry.
Staff Sergeant (E-6) Springer was convicted by a general court-martial composed of members with enlisted representation of two specifications of assault consummated by a battery, and sentenced to confinement for 90 days, reduction to E-4, and a bad-conduct discharge. The Army CCA affirmed and CAAF denied review, but then Springer:
received notice that his military judge, Lieutenant Colonel (LTC) Richard Henry, “was involved in an inappropriate relationship with the wife” of an attorney practicing before him. Specifically, an investigation found that LTC Henry engaged in an inappropriate relationship with Mrs. KC, the wife of Captain (CPT) AC, a judge advocate who practiced before LTC Henry as a trial counsel and later became a defense counsel in the same judicial circuit.
Slip op. at 2.
Springer sought reconsideration which CAAF granted on June 5, 2019, and the court remanded the case to the Army CCA for consideration of the following issue:
WHETHER THE MILITARY JUDGE ERRED BY FAILING TO RECUSE HIMSELF BASED ON CIRCUMSTANCES THAT, IF KNOWN AT THE TIME OF APPELLANT’S COURT-MARTIAL, WOULD HAVE PROVIDED REASONS TO REASONABLY QUESTION HIS IMPARTIALITY.
Slip op. at 2. It was the first of four such grants and remands with identical issues. The other cases are: United States v. Teer, No. 19-0212/AR, CCA No. 20170601 (remanded on Jun. 20, 2019); United States v. Lopez, No. 19-0321/AR, CCA No. 20170386 (remanded on July 24, 2019); and United States v. Anderson, No. 19-0262/AR, CCA No. 20170158 (remanded on Oct. 31, 2019). I noted the remand in Teer in this post.
Judge Schasberger’s opinion provides a lengthy summation of a close personal relationship between the military judge and Mrs. KC. The relationship was eventually discovered by Mrs. KC’s husband – Captain AC – who reported it to his chain of command. Then:
Following CPT AC’s report, LTC Henry was removed from the bench on 8 April 2018. Thereafter, the then Commander of the United States Army Legal Services Agency, Brigadier General Joseph B. Berger, III, appointed Colonel (COL) DR to conduct an investigation of LTC Henry pursuant to Army Reg. 15-6, Boards, Commissions, and Committees: Procedures for Administrative Investigations and Boards of Officers (1 Apr. 2016) [AR 15-6]. The investigating officer concluded that LTC Henry engaged in “a personal and emotionally intimate relationship with Mrs. [KC] between December 2017-April 2018.”
Slip op. at 5.
The Army CCA concludes that the military judge was disqualified due to an appearance of lack of impartiality. Specifically,
The evidence indicates LTC Henry himself likely understood the consequences of his relationship with Mrs. KC. On various occasions, CPT AC approached Mrs. KC about the content of her messages with LTC Henry. Rather than reveal the content, Mrs. KC responded that LTC Henry told her it was inappropriate for her to share the contents of their messages with CPT AC, an attorney practicing before LTC Henry.
We therefore find that at the time of the trial on the merits in December 2017, LTC Henry was certainly disqualified under R.C.M. 902(a) and needed to either recuse himself or disclose the full details of his relationship with Mrs. KC and determine if the parties waived his disqualification. Failing to recuse himself or make such a disclosure was error.
Slip op. at 6-7. Furthermore, Judge Schasberger notes that this error was not waived by the failure to raise it because a military judge has an affirmative duty to disclose a known basis for challenge:
“[A] military judge shall disqualify himself or herself in any proceeding in which that military judge’s impartiality might reasonably be questioned.” R.C.M. 902(a) (emphasis added). In some cases, a military judge may accept a waiver as to his disqualification if there is a “full disclosure on the record of the basis for disqualification.” R.C.M. 902(e). Here, LTC Henry never disclosed a basis for disqualification, so no waiver exists.
Slip op. at 5 (emphasis in original).
The Supreme Court set out a three-part test for whether reversal is warranted on the basis of an appearance of lack of impartiality, in Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 862-64 (1988). The test considers “the risk of injustice to the parties in the particular case, the risk that the denial of relief will produce injustice in other cases, and the risk of undermining the public’s confidence in the judicial process.” 486 U.S. at 864. The Army CCA finds that the third part alone warrants reversal in this case:
There may be times when we apply Liljeberg and conclude the military judge should have disqualified himself or herself under R.C.M. 902(a), but can say with certainty that a reasonable person knowing the entire record would have confidence in the judicial process. This is not such a case.
The record here substantiates inappropriate behavior by LTC Henry. Judicial misconduct with the spouse of a party to the case during trial erodes public confidence in the judiciary and the military justice system. Here, beyond having “a personal and emotionally intimate” relationship with Mrs. KC outside of the courtroom, Mrs. KC also spent over an hour privately with LTC Henry in his chambers during the panel’s deliberation on findings. Given this evidence, the government on appeal rightly concedes that “LTC. Henry’s relationship with [Mrs. KC] poses a risk of undermining public confidence in the military justice system.” Accordingly, the only way to remedy LTC Henry’s failure to disqualify himself in this case is to set aside the findings and the sentence and authorize a rehearing.
Slip op. at 7-8 (modification in original).