A military judge’s disqualification–always an issue?

The Army Court of Criminal Appeals has raised an interesting question and important reminder in United States v. Keen, decided 20 October 2016. The court itself specified the following issue.

WHETHER THE MILITARY JUDGE ACTED AS COUNSEL OR LEGAL OFFICER AS TO ANY OFFENSE CHARGED OR IN APPELLANT’S CASE GENERALLY OR FORWARDED CHARGES IN APPELLANT’S CASE WITH A PERSONAL RECOMMENDATION AS TO DISPOSITION WHEN HE WAS CHIEF OF MILITARY JUSTICE AT III CORPS?

The facts supporting this issue were:

• The accused selected trial by military judge.
• The military judge had made the usual rote disclaimer in which they say they know of no reasons to be disqualified.

It turns out that:

• While Appellant’s case was being investigated, the military judge was the Chief of Justice.
• CID did its usual coordination with the trial counsel.
• A trial counsel gave the rote probable cause finding.
• The military judge, as chief of justice, supervised that trial counsel.
• The trial defense counsel did not know this because he’d recently reported to that base.

Most importantly, both the trial defense counsel and the Appellant stated there would not have been a judge alone trial if they’d known of this information (or, not in the opinion, they would have asked the military judge to recuse himself[?]).

The bottom line for Keen is:

In the present case, the military judge was CoJ when the rape offense at issue occurred and when it was reported to and investigated by CID. Additionally, the case was present on his military justice case tracker. The probable cause opinion was rendered by a trial counsel under his supervision for the very offense for which the appellant was later tried. Regardless of whether this constitutes acting as “a counsel” in appellant’s case, this level of involvement in, and knowledge about, appellant’s case forms a sufficient basis to reasonably question the military judge’s impartiality. We, therefore, find the military judge was disqualified under R.C.M. 902(a) and he committed error in serving as military judge in appellant’s trial.

Because this was a structural error, Keen gets a new trial.

A reminder. When I first learn who the military judge is in a case I have, I want to know as much about him or her as possible. There are many reasons to know who the judge is, including whether or not you should recommend a military judge alone trial to the client. If the judge is new to me, then I want to know their record prior to coming to the bench, such as whether they’ve just come from a TC/DC or SJA?RDC billet–it may have an impact on their approach to a trial; how long have they been on the bench (my rule of thumb is that it takes a judge about a year to find their feet and evidence their judicial philosophy); how do they resolve MJA trials? How are they on sentencing?