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From the mouths of ... non-lawyers

10/27/2021

 
While thousands of lawyers' eyes passed over a recent update post about the Bergdahl case, only one comment was made, by "NotALawyer." Despite this person's lack of legal training, I found this comment to be astonishingly on point--raising a not-yet-discussed CA7 case that demolishes ACCA's reasoning regarding the effect of Bergdahl's failure to inquire into Nance's job search.

"[A] party does not have an obligation to discover any potentially disqualifying information that is in the public record. The onus is on the judge to ensure any potentially disqualifying information is brought to the attention of the litigants. 28 U.S.C. § 455(c) (“A judge should inform himself about his personal and fiduciary financial interests.”); see also Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 873 n. 9 (1988) (“[N]otwithstanding the size and complexity of the litigation, judges remain under a duty to stay informed of any personal or fiduciary financial interest they may have in cases over which they preside.”). It would be unreasonable, unrealistic and detrimental to our judicial system to expect litigants to investigate every potentially disqualifying piece of information about every judge before whom they appear. “[L]itigants (and, of course, their attorneys) should assume the impartiality of the presiding judge, rather than pore through the judge's private affairs and financial matters․ ‘Both litigants and counsel should be able to rely upon judges to comply with their own Canons of Ethics.’ “ Am. Textile Mfrs. Inst., Inc. v. Limited, Inc., 190 F.3d 729, 742 (6th Cir.1999) (quoting Porter v. Singletary, 49 F.3d 1483, 1489 (11th Cir.1995))."
​Listecki v. Off. Comm. of Unsecured Creditors, 780 F.3d 731 (7th Cir. 2015).

Brenner Fissell

EIC

Donald G Rehkopf, Jr.
10/28/2021 09:49:30 am

"Not a lawyer" sure seems like s/he has some legal training however. I know a few people who went to law school but never took the bar. Or, it could also be an astute, experienced paralegal.

However, while I agree that Listeki is the correct statement of the law, part of the problem is that DC drop the ball by simply not asking one basic voir dire question: "Your Honor, are you aware of any potentially disqualifying matters that could be viewed as an indication of, bias, interest, or impartiality?"

If you get the (almost) standard response from the MJ, viz., "I'm not aware of any matter that would disqualify me in this proceeding," then the question is equally as simple: 'Your Honor, for the record, what factors did you consider in reaching that conclusion?"

Now I'm not bashing MJ's here, but for someone who's been around "a while" in the military justice arena [45 years], we all know of MJ's who were dating [legally or not] a TC or SJA, MJ's who had been privately "counseled" about lenient sentences, etc., as the MJ Reporters unfortunately demonstrate. Fortunately, they are few and far between, but when it happens, e.g., judges Spath and Nance, it erupts into major issues.

Concerned Citizen
10/29/2021 09:41:25 am

In the Army (not sure about other services), the Military Judge's Benchbook, the script for trials, has the Military Judge say, "I am not aware of any matter that might disqualify me in this court-martial." Seems like asking that question would be superfluous.


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