Major Pleading Filed in Bergdahl Case in DC District

10/19/2021

"This is a case about the flagrant abuse, for obvious political purposes, of the due process
rights of a repatriated American POW...."

Comment: So, the question is, did the military courts give "full and fair consideration" to the claims. Think about the judicial bias claim. This was a claim based on facts discovered (via FOIA!) after briefing and argument--a claim that elicited an invitation to file a coram nobis. After the coram nobis was filed, the lower court denied it on the basis of it not being raised sooner. Full and fair consideration? Remember, the question is not whether you would grant relief, but whether the claim was considered. The answer to that seems to be an obvious "no."

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NotALawyer

10/25/2021 01:45:48 pm

Researching something unrelated to Bergdahl, I cam across this ruling in Wisconsin at https://caselaw.findlaw.com/us-7th-circuit/1694000.html

... “if the basis for recusal is a matter of public record, as in this case, then the failure to seek recusal in a timely manner is inexcusable.” But there is no such requirement—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)).

A judge should stay up to date on her financial and other interests so she can make informed decisions and avoid either the appearance of impropriety (28 U.S.C. § 455(a)) or actual bias (28 U.S.C. § 455(b)). The informed judge may then recuse herself on her own motion, if necessary. See Hampton v. Chicago, 643 F.2d 478, 480 n. 7 (7th Cir.1981) (per curiam) (noting district court “may disqualify himself on his own motion since, for example, he is probably best informed about his minor children's financial interests”). The informed judge can also disclose any concerns he might have so that the parties can proceed with full knowledge. 28 U.S.C. § 455(e) (noting “waiver may be accepted [under § 455(a) ] provided it is preceded by a full disclosure on the record of the basis for disqualification”). Had that been done here, any purported timing issues or concerns that the Committee had questionable motives in filing the motion would have resolved themselves earlier in the proceedings.

Under 28 U.S.C. § 455(a), a judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Whether a judge's impartiality might be reasonably questioned is an objective determination. In re Hatcher, 150 F.3d 631, 637 (7th Cir.1998). The question is whether a reasonable person could perceive “a significant risk that the judge will resolve the case on a basis other than the merits.” Id. (quoting Hook v. McDade, 89 F.3d 350, 354 (7th Cir.1996)).

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Major Pleading Filed in Bergdahl Case in DC District

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