ACCA affirmed the findings and sentence of Private Erick C. Black, finding no actual bias by the military judge.
Black opinion here.
On August 28, 2020, ACCA affirmed the findings of guilt and sentence of Erick C. Black (Appellant) for the rape and sexual abuse of his nine-year-old adopted daughter in December 2016. Appellant alleged that he was deprived of a fair trial because "the military judge had an obligation under [Rule for Courts-Martial] 902(a) to disqualify himself from the proceedings." Appellant also cited to R.C.M. 902(b)(1), arguing actual bias on the part of the military judge entitled him to relief. With regard to Appellant’s first argument, ACCA concluded Appellant failed to establish actual bias under R.C.M. 902(b)(1). With regard to Appellant’s second argument, of appearance bias under R.C.M 902(a), ACCA found Appellant waived the issue and, even assuming appellant did not waive the claim, found no error by the military judge, plain or otherwise.
Appellant was convicted of raping and sexually abusing his nine-year-old adopted daughter, digitally penetrating her and touching her breasts while she lay on the couch next to him. Prior to trial, the government filed two motions to introduce propensity evidence under M.R.E. 414. The first motion alleged uncharged acts of child molestation perpetrated by Appellant against his two adopted daughters, LB and RB; the second motion alleged uncharged acts of child molestation perpetrated by Appellant against his younger sister, AW. Citing a comparison of the words used by the military judge in his LB/RB ruling and his AW ruling, Appellant alleged for the first time on appeal that the military judge's AW ruling shows a "trier of fact with pre-established beliefs as to the credibility of particular witnesses and the guilt of the accused." The former made frequent use of hedged language such as “alleged” and “allegedly,” while the second did not. As a result, Appellant argues "the military judge had an obligation under R.C.M. 902(a) to disqualify himself from the proceedings."
With respect to Appellant’s argument of actual bias under R.C.M. 902(b)(1), ACCA noted that Appellant cited to nothing extrajudicial to support such a claim. Finding no evidence in the record either, ACCA held that Appellant’s reliance on R.C.M. 902(b)(1) as a basis of relief was misplaced.
With respect to Appellant’s argument of apparent bias under R.C.M. 902(a), ACCA found that Appellant was fully informed and aware of what he then alleged as the basis for disqualification under R.C.M. 902(a). Accordingly, ACCA held that Appellant had waived any disqualification claim of the military judge under R.C.M. 902(a). Even assuming Appellant did not waive the issue, ACCA found no error, plain or otherwise, warranting relief. Viewed objectively, ACCA found that a "reasonable man knowing all the circumstances [related to the ruling]" would not reasonably question the military judge's impartiality. In reaching this conclusion, ACCA cited the military judge’s references to the proffered propensity evidence as "allegations" no less than seven times.
With respect to Appellant’s further contention that, by the time of his AW ruling, the "military judge had already formed an opinion as to the credibility of witnesses," ACCA disagreed. ACCA found that nothing in the record, to include the AW ruling at issue, revealed that the military judge had either predetermined the credibility of any witnesses, to include AW, or judged appellant prior to the close of the merits. For this reason, ACCA concluded that an objectively reasonable observer aware of all the relevant facts and circumstances concerning the military judge's MRE 414 rulings would not harbor questions about the impartiality of the military judge.
Finally, ACCA considered whether recusal was required even though no material prejudice resulted, and applied the three factors for determining whether a judgment should be vacated in Liljeberg.ACCA found no risk of injustice to the parties, risk that denial of relief would produce injustice in other cases, or risk of undermining the public’s confidence in the judicial process. For this reason, ACCA found the military judge who presided over appellant's case was “nothing less than a neutral, detached, and impartial trier of fact,” and the findings of guilty and the sentence were affirmed.
Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 108 S. Ct. 2194, 2195, 100 L. Ed. 2d 855, 864 (1988)
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