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