The Obvious, Blatant, MJ/AUSA Conflict of Interest

10/1/2021

We have been discussing the practice of reservists serving as MJs while having full time employment as DOJ prosecutors. Concrete examples sometimes help. Consider this: link.

Lt. Col. Gleason will spend almost all of his weekdays standing up in federal court in North Carolina, starting his appearances with the words "Mr. Gleason for the United States." In the rare moments when he is acting as a reserve MJ, however, we expect him to shake off this habit and the attitudes that come with it, and to impartially judge a case in which "the United States" is on one side of the "V." The obvious, blatant conflict of interest is squarely framed by Gleason's own words:

“What can be better than representing the United States of America, and have the opportunity to do that every day, and have the opportunity to do the right thing. Not every job you can say that, but in this job, you do.” (emphasis added).

Presumably the "doing the right thing" part is serving as an MJ. What could be better, indeed, for Lt. Col. Gleason, than to be able to have a great career in DOJ and to also get to wear a robe once in a while. The accused who appear before him would likely answer that question differently. "What could be better?" A judge without the appearance of a conflict of interest.

Brenner Fissell

Concerned Citizen

10/1/2021 08:32:46 pm

I get the issue with handing prosecutors as judges, but I think that's a little unfair to LTC Gleason. Of course he thinks he's "doing the right thing" in his job as an AUSA.

Lone Bear

10/2/2021 02:09:29 am

It’s all relative. How impartial is a judge who gets ranked against other judges, has detailing cycling left, and who hopes to promote? For the most part, I think AUSAs would make good reserve judges since they at least know and understand the rules of evidence. I don’t know that they are more conflicted than other judges. No military judge is really conflict free, but many do the job with integrity and to the best of their ability.

Anonymous

10/2/2021 09:04:46 am

This post seems a bit hyperbolic.

There is no conflict for someone having a general worldview shaped as a prosecutor or a defense counsel. We want judges who have expertise in criminal law, and those views will be shaped by experience on the prosecution or defense side.

There is also not a conflict that reservist mj judges are being paid by the federal government for a different job. The advisory opinions cited in the other posts specifically allow federal judges to draw a military pension. It is not the salary issue.

I think the real complaint is that the defense bar does not like that these reservist judges actually give reasonable sentences.

Brenner

10/2/2021 09:08:51 am

You’re really straining to defend this. Lots of technicalities. He IS a prosecutor. He also IS a judge. Not ok. QED.

Philip D. Cave link

10/2/2021 10:10:33 am

Let's focus on the specific issue here.

1. Factually, as in King and some other cases, may a Reserve military judge preside over a court-martial, if at the same time the RMJ is also a full-time Assistant U.S. Attorney or senior level DoJ employee in the Criminal Division prosecuting criminal case for, on behalf of, and in the name of the United States? A court-martial in which the TC prosecutes in the name of and represents the United States, also the judge's "employer."

2. Military appellate courts have long followed the perception doctrine of fairness and the appearance of fairness. See, e.g., United States v. Lee (CAAF 2006); United States v. Schlamer (CAAF); United States v. Napolitano, 53 M.J. 162, 167 (C.A.A.F. 2000); United States v. Velez, 48 M.J. 220 (C.A.A.F. 1998). While the doctrine often comes up in the context of UCI (at least under the old rules), it is not limited to UCI.

3. Some would argue that the military justice system not only be a fair system of criminal justice, but that it always be perceived as fair. “[J]ustice must satisfy the appearance of justice.” Offutt v. United States, 348 U.S. 11, 14 (1954)(Frankfurter, J.).

4. United States v. Berry, 34 M.J. 83, 88 (CMA 1992)(Courts-martial must not only be fair but must appear fair to effectively further the cause of good order and discipline in the armed forces.).

5. United States v. Wright, 52 M.J. 136, 141 (1999) (RCM 902(a) and 28 USC §§ 455(a) calls for judges to disqualify themselves to foster the appearance of justice within the judicial system.).

6. Then we have the third Liljeberg factor of "an appearance," which is essentially the appearance doctrine. For some reason the Supreme's seem to think that's important.

7. The issue is NOT about judges who once were prosecutors or defense counsel, it is about MJs who ARE prosecutors at the time of the court-martial. (I agree, the same might be said about those who are Federal or public defenders, or defense counsel.)

8. While we all might think such MJs are fair, perhaps based on experience or knowing them, that is not the question. The question is what would the public think, the public being other servicemembers (Cruz, 20 MJ 873, 882 (ACCA)), their family, the general public. Just like Service Discrediting behavior, it doesn't have to be all of the public, for there to be a concern. (There's an old Gallup poll in which there is a rough 50/50 split of the respondents on whether they think adultery should be prosecuted in the military, yet we still do. [https://news.gallup.com/poll/4381/Most-Americans-Would-Soften-US-Militarys-Rules-Against-Adultery.aspx] For those of us at the time, that's where the "Ralston" amendment to the MCM came from.)

9. Is there a certain incompatibility between the two occupations/ assignments? No, I'm not suggesting Lane is dispositive, but there might be a reasonable analogy to the constitutional provision--that it is incompatible with notions of fairness and the appearance of fairness to have a judge be a prosecutor on behalf of the same jurisdiction at the same time as judging on behalf of that jurisdiction.

10. Lest people think the litigants are making personal attacks on the RMJs, lets be sensible. If every time an appellant through counsel raised an AOE arguing the MJ abused her discretion or wrongly decided an issue, are we going to consider that to be a personal attack on the MJ? OMG, if that be the case, then every appellate judge who voted in favor of an abuse of discretion or error would be impliedly making a personal attack on the MJ as well. Duh.

Anon

10/2/2021 03:30:38 pm

Navy JAG Corps has federal public defenders as reserve MJs. They also have/had civilian defense counsel who often appear in many courts-martial as reserve MJs, though out of "home" circuits. This includes at least one who advertisers that he "represents registered persons" and doesn't believe in sex offense registration. (MJ tap dances hard at void dire)That's a fine political belief, but when the victim as a member of the public sits in the back for the judge alone trial (how surprising) what's the perception these scenarios give? Time to ditch reserve MJs across the boards. It is not just an AUSA issue.

Brian L. Cox link

10/2/2021 06:58:24 pm

This hypersensitivity about the perception of possible unfair judicial bias reminds me of a Winnie the Pooh movie I watched for family date night last weekend. Throughout almost the whole movie, Pooh and friends are mortally afraid of and desperately hiding or running from something they call a Backson. They don't know what it is because they've never actually seen one, they just know that if it catches them it will do horrible things to them. In the end (spoiler alert), Pooh and company figure out that the Backson never existed. It was just a big misunderstanding all along (Chrisopher Robbin said he'd be "back soon" before he left the Hundred Acre Wood for a while, and the friends thought a "Backson" must've disappeared him).

Pretty much the same thing here. If we're going to get so wound up about the potential for unfair bias, let's confirm that an unfair bias actually exists. If we're going to let perceptions of unfair bias drive our policies, we'll never find "justice" since a perception of bias can exist anywhere - in the judicial system just like in daily life. For example, if we learn that a ref who is scheduled to officiate the Steelers v. Packers game tomorrow grew up in Pittsburgh, should we disqualify that ref? After all, if Green Bay loses (hopefully they will), a Packers fan might complain that this ref's implicit bias contributed to the loss. Another example: I can't stand cucumbers, but my kids like them. Should I be disqualified from grocery shopping because my personal bias against cucumbers might keep me from putting them in the cart? There's less at stake in a football game or a shopping trip than in a judicial proceeding, but the point is that we encounter and manage potential bias in our daily lives. Why should we expect that judges are somehow incapable of doing so when the concern is just potentially implied bias rather than actual objective bias?

The same point could be made for the debate involving commanders' court-martial authority. Why the apparent sudden shift from SA offenses to all felonies? It's because the actual concern never has truly been about sexual assault response....at least, not if we're going to consult the actual data that's available. The concern has always actually been about perceptions of bias, and that transcends sexual assault offenses. Sexual assault prevention has always been the emotional hook that garners public attention for the cause, yet here we are with a potential "solution" that is scoped to "fix" the "problem" of commander bias in general. This is why the reform movement has remained largely impervious to actual data - because it's driven by perceptions of bias rather than demonstrated unfairness.

I'll conclude this comment with a modest suggestion. When we're discussing issues of perceived bias or unfairness, let's put an end to the prevailing Backson Syndrome. We do that by determining, as well as possible, whether a perceived unfairness is actually unfair. If we study a potential problem, measure it, and determine that it's not an actual problem, that study is the answer to those who remain concerned with the potential injustice. A misinformed perception is only reality for the misinformed. Let's not let misinformed perceptions be the central driving force for policy in reality. Otherwise, we never will stop running away from that pesky Backson.

10/3/2021 01:53:14 pm

Brian—That ship has sailed. Perceptions matter. That’s the law.

10/3/2021 11:25:06 pm

Brenner,

Without a doubt - I certainly wouldn't disagree with you there. Just because the ship is sailing, though, doesn't mean we need to let go of the wheel and drift wherever the waters take us. The winds of public perception are fickle indeed. Perceptions of fairness are a vital gauge when measuring the effectiveness of a justice system. I don't mean to suggest that we don't need to care about perceptions, but I do think we should focus on informing our perceptions by evidence-based research and then making informed policy decisions from there. We do that, perceptions of justice will be well served.

Matt Jones

10/6/2021 01:57:08 pm

Brian, the better analogy is whether there should be a referee at the Steelers Packers game who is currently employed by the Packers, and will be returning to work for the Packers on the Monday after the game. Is it enough to just hope that he is going to be fair? Or would such a practice severely undermine the confidence of Steelers fans regarding the fairness of the whole setup?

10/12/2021 11:16:54 pm

Matt,

I know the posts have long since moved on so I'm not sure if you'll end up seeing this note, but I just noticed yours so I'll circle back here just in case. Sorry for not seeing your comment earlier.

This is certainly a reasonable point, but I think it's fair to say that your suggested scenario (ref is employed by the Packers) presents an actual, objective personal bias. In this case, we would be worried that the ref's status as an employee of the Packers will interfere with the ability to remain neutral during officiating since better performance for the organization would presumably be good for the employees of the organization. In the professional setting, we have rules to account for that - such that if I have a personal business interest in a case I need to disclose that and, under most circumstances, be prepared to refrain from representing a client whose interests would be adverse to mine.

In the case of a Reserve MJ whose day job is prosecuting as an AUSA (or some similar capacity), there is no actual objective bias with which to be concerned. I mean, we're taught early in law school to be prepared to represent either side of a dispute -- in moot court competitions and in our routine practical instruction. Our job as advocates isn't about us or our personal views since we're expected to be agents of justice performing a role in the judicial system. A "win" for the prosecutor as an AUSA is a successful prosecution on behalf of the People. While I understand that reasonable perspectives may disagree, I don't see an actual, objective source of personal bias in the civilian prosecutor/RC military judge construct.

Now, as Brenner pointed out, perceptions do matter -- and that includes perceptions of implied bias. My suggestion is that if we care enough about the perception to consider changing a policy, let's at least devise a method to measure whether there is actually a bias with which to be concerned first -- if at all possible. In this case, an evaluation might look something like comparing reasonings and outcomes on motions, verdicts, sentences, etc. among non-prosecutor RC military judges as the control group and then the same variables for our prosecutor/judges. If we find a disparity that is outside a pre-determined range we find to be acceptable, *now* we are in a position to make an informed decision about whether we need to prevent civilian prosecutors from servicing as RC MJs. If we determine that any discernible variance is reasonable, then that study is the answer to an Accused or a member of the general public who is concerned with the appearance of unfair bias. If those with concerns remain unpersuaded by the data, my response, to be quite frank, would be, "Tough shit." We're not going to dismantle transoceanic shipping regulations just because a group of people remain convinced that the world is flat. If someone wants to cling on to a perception of unfairness even in the face of convincing data, that's on them. Here in the real world, I think we need to formulate policies based on actual information and evidence to the greatest extent possible.

As for the Steelers v. Packers game a few weeks back, I'm convinced that the outcome must be attributable to a line judge who was born in Wisconsin and had some implicit bias in favor of Green Bay. :)

Allan

10/4/2021 10:50:07 am

Funny thing. My thought is there is not a problem when a military judge has the mindset of a prosecutor. Instead, the problem is that many prosecutors do not have the correct mindset of a prosecutor. More than even judges, prosecutors must be fair. I only have difficulty with the prosecutor being a military judge when the prosecutor does not meet this standard..

One SJA I worked for told me that the prosecution never loses, because the prosecutors job is justice. If there is an acquittal, just as when there is a conviction, justice is done. I believe that is the proper prosecutorial position.

Simply put, the government never loses in the criminal justice system, except when the government cheats or is unfair. So, if you have a prosecutor that upholds that high bar, I have no problem with that prosecutor being a military judge.

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The Obvious, Blatant, MJ/AUSA Conflict of Interest

Brenner Fissell

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