Two weeks ago, in this post, I discussed the Army CCA’s published, unanimous, en banc opinion in United States v. Springer, __ M.J. __, No. 20170662. Reviewing misconduct by the military judge (identified in the opinion as Lieutenant Colonel Richard Henry), the CCA held that such “misconduct with the spouse of a party to the case during trial erodes public confidence in the judiciary and the military justice system.” Slip op. at 7. I also noted that the case was one of a number raising the same issue of judicial disqualification.

Last week the CCA addressed a second such case, but reached a very different conclusion. With a published opinion in United States v. Anderson, __ M.J. __, No. 20170158 (A. Ct. Crim. App. Feb. 5, 2020) (link to slip op.), a three-judge panel of the CCA concludes that the military judge was not disqualified because the judge-advocate husband of the woman with whom the judge committed the misconduct was not otherwise involved in the case, and it also concludes that even if the military judge was disqualified it does not “risk undermining the public’s confidence in the judicial process.” Slip op. at 2.

Judge Schasberger – who wrote the opinion in Springer – writes for the panel.

Distinguishing this case from Springer – where the CCA observed that the military judge “engaged in a personal and emotionally intimate relationship” with the wife of a junior military attorney – Judge Schasberger explains:

In contrast to Springer, __ M.J. _, ARMY 20170662, we specifically find that here LTC Henry was not disqualified to act as the military judge in appellant’s case. At the time of appellant’s March 2017 court-martial at Fort Rucker, Alabama, the evidence shows LTC Henry, a military judge assigned to Fort Benning, Georgia, was friends with the wife of a prosecutor assigned to Fort Benning, Georgia. Critically, that prosecutor, CPT AC, had no involvement with appellant’s case.

In reviewing this case, we have found no case law or other authority which suggests a military judge must disclose ·a friendship with the spouse of a prosecutor, when that prosecutor is in no way involved in the case at issue. We consider whether a reasonable person knowing all the facts and circumstances of appellant’s case would question LTC Henry’s impartiality. Specifically, the relevant facts and circumstances include: (1) the nature of LTC Henry’s relationship with Mrs. KC at the time of trial (friendship); (2) the locality of appellant’s court-martial (Fort Rucker, Alabama instead of Fort Benning, Georgia, where CPT AC was assigned); (3) CPT AC’s lack of participation in appellant’s court-martial; (4) CPT AC’s assignment as a prosecutor in a different OSJA than the one prosecuting appellant’s case; and (5) the lack of similarity between the charges in appellant’s case and the nature of L TC Henry’s undisclosed conduct. Based on these facts and circumstances, we find that a reasonable person would have no reason to question LTC Henry’s involvement or impartiality in appellant’s case. Accordingly, we find that LTC Henry was not disqualified from acting as the military judge in appellant’s court-martial.

As we find that L TC Henry was not disqualified from acting as the military judge in appellant’s case, we need not conduct an Article 59(a), UCMJ, analysis, nor analyze the three factors identified in Liljeberg.

Slip op. at 5-6. A lengthy footnote, however, does consider prejudice and the Liljeberg factors, concluding:

Assuming arguendo that LTC Henry erred by not disclosing his relationship with Mrs. KC or failing to recuse himself from appellant’s case, we still find a remedy for such an error is unnecessary. First, we find that appellant suffered no material prejudice to a substantial right. We have not identified any rulings or decisions in appellant’s case that would arise from LTC Henry’s failure to recuse himself or disclose his relationship with Mrs. KC. Second, our analysis of the three-prong test outlined in Liljeberg leads us to the conclusion that no remedy is necessary. We do not believe, based on the facts of this case, that there is a risk of injustice to the parties, nor do we believe that denial of relief will produce injustice in other cases. Critically, we are also confident after considering the totality of the proceedings that a reasonable person knowing the entire record would have confidence in the judicial process. There is simply insufficient evidence to establish that L TC Henry’s relationship with Mrs. KC had risen to an inappropriate level when appellant was tried in March 2017, and CPT AC’s absence in this case forecloses any potential concerns about confidence in the judicial process.

Slip op. at 6 n.5

16 Responses to “The Army CCA affirms a conviction despite the military judge’s “personal and emotionally intimate relationship” with the wife of a junior judge advocate”

  1. Some Army Guy says:

    “Friendship.”

  2. Anon says:

    US v. Jerry Springer ….

  3. stewie says:

    Was never a fan of the Army’s MJ selection process, and this doesn’t make me any more of a fan.

  4. David (the original Jody) says:

    Can we set up a Judge Jody trailer park somewhere on this site?  Maybe put it between TJAG UCI Drive and Matt McDonald Misconduct Lane?

  5. Bill says:

    I’m very confused. This is reading like there was a LtCol Henry in Springer, and a LtCol Henry in Anderson.  What am I missing?

  6. TwoEl says:

    Bill – This is the same judge, and the same factual situation as Springer. The difference between the two cases are that in Springer the prosecutor was the husband of the civilian female the judge was said to be having a close undisclosed relationship, and in Anderson it was a separate prosecutor that had no involvement with the other prosecutor; and thus this trial was not tainted, even if the judge should have disclosed in the other case. 
    They’re looking to minimize the post-conviction impact of Springer,  and are sending a clear signal that even though they threw shade at the MJ in that opinion, unless your prosecutor was the same prosecuted as in Springer, you can’t challenge your conviction just because you were before LtCol Henry. 

  7. Vulture says:

    IOW the ACCA is still composed of company men.  The Springer opinion panel was composed of at least one former RDC of the SE region.  This one is composed of risk managers that are putting out the same mitigation that landed Cpt AC in the TDS office.  It’s an advisory opinion attributable to institutional protection.

  8. stewie says:

    Vulture, I mean it’s a reasonable distinction. I’m less concerned about a conflict in this case, than I am in a LTC and MJ who was apparently “friends” with multiple trial counsel/junior officer’s wives.

  9. Lone Bear says:

    It’s very concerning that a judge is having an affair with a prosecutor’s wife. Doesn’t this make him subject to blackmail and coercion? It’s why they pull security clearances for this type of thing. They may not need to throw out all the cases, in some the evidence of guilt might be so overwhelming, or the impact of the judge so small, that it doesn’t impact the case. But if there are any factual or legal issues in controversy and the judge’s call made a difference then the case should be set aside.

  10. (Former) ArmyTC says:

    Vulture, this panel includes COL Dan Brookhart. Judge Brookhart is the former chief of USATDS. So go ahead and explain that one with your cynicism?

  11. Philip D. Cave says:

    The problem here is that the Court is looking at each case individually. But, is it not more appropriate to look at there being seven cases involving the same MJ and the same reason to question his sitting as an MJ. Maybe the public won’t have too much concern in just one case, but what about many cases with the same judge?

  12. Vulture says:

    Former
    Don’t have to.  Colonel Mark Tellitocci was Chief of DAD before going on the ACCA.  
    There isn’t a reason to believe a fuckin thing any of them say.  But I comprehend the distinction that Stewie is alluding to, just not the purpose.

  13. stewie says:

    Vulture, it can be both. Yeah, most people who make O6 or higher in the military get there by being “company men.” It’s part of the process of getting promoted. You bought in fully, played the game, etc. (although sometimes it involves favoritism and friends in high places). There’s nothing inherently wrong with that per se. Pretty much every human system involves buying in to some extent to the company line. So yeah, they probably all are that way, but that doesn’t mean, as you seem to understand, that the distinction is enough to render it a reasonable decision nevertheless.

  14. Fisch says:

    So, the equations are:
    If RH=MJ and TC=AC, then Conviction=set aside.
    If RH=MJ and TC does not = AC at a post other than Ft. Benning, GA, then Conviction = affirmed.
     
    But, what if TC does not equal AC, the trial was held at Benning?  Does the MJ’s relationship with a prosecutor’s wife taint the public’s view of a trial?  Or, how would a conviction be treated if the accused pleaded guilty?
     
    I can agree with this opinion.  Without evidence that the MJ was coerced into taking an action adverse to an accused based on a relationship with a prosecutor’s wife at another post, then I don’t see a member of the public questioning the a trial that did not include CPT AC.  
     
    Disclaimer: I represented SSG Springer at trial.

  15. Broken System says:

    Vulturesays:
    February 12, 2020 at 9:17 PM

    IOW the ACCA is still composed of company men.  The Springeropinion panel was composed of at least one former RDC of the SE region.  This one is composed of risk managers that are putting out the same mitigation that landed Cpt AC in the TDS office.  It’s an advisory opinion attributable to institutional protection.
     

    And by “former RDC of the SE Region”… you mean the one that keeps getting put on ACCA because he keeps getting trouble so they can’t put him anywhere else??  Totally agree.
    It has been widely held belief for some time that there are some good quality peeps on ACCA but then there are others that are there for not good reasons yet no one at the very senior levels has the stones to take action against them.  So those folks get put in a place where they can ‘do the least damage’.  But the problem with that approach is they can do the most damage when it comes to being on an appellate court where someone’s liberty is at stake.  Same argument made for those that get to ACCA because they don’t have the skillset for any other job and don’t have the skills for being an appellate judge.  I had one former ACCA judge (that was a friend) tell me that he was put there and really didn’t understand why because he did not have the background or skills he felt were necessary.  
    Bitter?  Meh.  Maybe just more of a realist that can say the truth.

  16. Vulture says:

    Agree with me at your own risk.  I’m not here to make friends.

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