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).

16 Responses to “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”

  1. Blackshoe says:

    The plot lines being leaked out for the reboot of Army Wives look lit

  2. Tami a/k/a Princess Leia says:

    Is the accused any relation to Jerry Springer?

  3. J.M. says:

    Google tells me that the Judge retired and is a senior manager for Walmart. No mention of him on the Georgia bar association. Was he disbarred or just unable/unwilling to secure employment as a lawyer?

  4. Anonymous says:

    Richard Henry is now a Senior Manager at Walmart. Looks like a great career change!

  5. Tami a/k/a Princess Leia says:

    He should probably change his comment about “ensuring trials were conducted fairly, efficiently, and in accordance with the law.” 

  6. David says:

    If this case became a TV show story line, then Judge Henry’s character should be renamed “Judge Jody.”

  7. Vulture says:

    In memoriam of the now delete Linkedin profile for Richard Henry, revere this stern warning.

  8. Alfonso Decimo says:

    Potentially, during the “emotionally intimate relationship” and the 1 hour alone in chambers during deliberations, they were reading Bible passages to each other and then discussing how the readings relate to living a full and meaningful life. If the Army could prove a sexually intimate relationship, would the Board report it with a euphemism? The judge told the TC’s wife it would be inappropriate to share their emails with her husband, so the Army CCA found he should have recused himself under RCM 902(a) and he was removed from the service? It seems to me the public interest in how government employees conduct the business of government requires the release of the obviously missing information. Otherwise, based on this euphemistic version, I would think the LTC would have a Privacy Act case, since his career has been harmed, he probably didn’t consent to the release of his name, and presumably no Privacy Act exceptions apply. 

  9. Vulture says:

    If you can’t find a church in Columbus or Phenix to practice your bible readings, your interest in the Privacy Act should be in protecting your SAT scores.

  10. Anonymous says:

    AD – If they were simply reading bible verses to each other, I doubt the wife would’ve refused to show her husband the messages and then delete them.  I agree the details of the relationship are vague, but I assume the 15-6 (and ACCA) had limited facts considering the messages were deleted.
    The recusal issue aside, I think carrying on a protracted, secretive, personal relationship with a subordinate’s wife shows a lack of judgment that calls into question his fitness to be a judge, an Army officer, and maybe even to practice law.  Alas, he appears to be an active member of the Tennessee bar, and the Army let him retire as an O-5 instead of an O-4, so what do I know.

  11. Alfonso Decimo says:

    Anon – You’re probably correct, but as Article I courts, military court records are subject to the Privacy Act and the FOIA and this Army CCA opinion must be reviewed w/o the logic fallacies (like the negativity bias, aka cynicism) that helps us navigate our non-official lives. This record says he had an “emotionally intimate relationship” and it doesn’t say he had a sexually intimate relationship. So, the Army CCA record is either lying to the public or someone needs to restore the LTC to active duty and to the bench, say “sorry” or pay him. – Alex

  12. stewie says:

    Do we know for sure the GDRB let him retire as an O5?
     
    Huh Alfonso Decimo? His relationship could have been non-sexual (or not proven sexual) and still be inappropriate enough to make it so he is not “restored to active duty and told sorry.” He should have never entered into any relationship with a junior officer’s (or any officer’s) spouse that was hidden from that officer. Anon is right, bad pick for a judge and bad pick for promo to FG officer.

  13. Philip D. Cave says:

    Watch for the following decisions which I am considering as Springer trailers. Do NOT assume they will all have the same result. As I tell clients, each case is different.
    United States v. Beer – United States v. Lopez – United States v. Teer – United States v. Beck – United States v. Provance – United States v. Rudometkin.
    The overarching issue is

    Even absent material prejudice to a substantial right pursuant to Article 59(a), UCMJ, a judge’s failure to disqualify himself may still require a remedy after applying the test laid out in Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 862-64 (1988). In Liljeberg, the Supreme Court considered three factors in determining “whether a judgment should be vacated” based on a judge’s appearance of partiality: “[1] the risk of injustice to the parties in the particular case, [2] the risk that the denial of relief will produce injustice in other cases, and [3] the risk of undermining the public’s confidence in the judicial process.” 486 U.S. at 864. The CAAF applies the same three-part test in analyzing cases involving a military judge’s appearance of partiality pursuant to R.C.M. 902(a). See United States v. Quintanilla, 56 M.J. 37, 45 (C.A.A.F. 2001). (Emphasis added.)

     

  14. Former AF Judge says:

    SMH at the lack of judgment.Stewie – I agree with you.
    AD – IMHO, an MJ loses his right to privacy re his conduct in a court-martial by committing misconduct with a party (or a part’s wife) during said court-martial. His name is part of the public record in any case in which a punitive discharge or confinement in excess of 6 mos is adjudged. Furthermore, when one sacrifices his ethics and violates his professional canons, he is no longer entitled to anonymity. Again, this is my opinion – I haven’t done the research.
    i also believe there should be a grade determination.
     

  15. Alfonso Decimo says:

    I admit I went too far arguing the judge didn’t deserve removal etc.; the facts are sufficient. However, simply as a matter of the law under the Privacy Act (PA), it’s not sufficient to say “IMHO” he loses his rights under the PA. These are Article I courts and the records are not public records, they’re agency records, subject to the PA and the FOIA. I agree the PA should be revised so senior personnel caught in official misconduct are publicly identified, but I challenge my learned colleagues on this blog to show me he has no PA claim. Presumably, no prior FOIA request was received, so does PA exception 2 (required to be released under the FOIA) apply? I don’t think Congress intended that agencies cannot report the official misdeeds of senior personnel, but maybe Congress needs to make that clear.

  16. Charlie Gittins says:

    In United States v. Schmidt, we took a GCM to an NJP.  There was no PA waiver, yet the USAF published the Punitive LOR on the USAF Website.  We sued in the District Court in Illinois for the PA violation.  The Court dismissed, saying that it was a matter of national interest so the Major’s LOR could be published.  My client chose not to appeal, so that is a case where the PA rights can be removed by the military simply because they choose to court-martial a military officer and then decide to take him to NJP.  

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