Judge Ohlson wrote for himself and Judge Sparks finding that the judge erred in not recusing himself but Appellant was not prejudiced. Judge Maggs wrote for himself and Judge Crawford concurring in the judgement but disagreeing that the military judge abused discretion. Chief Judge Stucky concurred in part and dissented in part.
The military judge and senior trial counsel in this case “became friends” approximately four years before Appellant’s general court-martial. At trial the defense, joined by the Government, filed a motion to recuse the military judge because of this friendship but the military judge denied the motion. We granted review to determine “[w]hether the lower court erred in finding the military judge did not abuse his discretion in denying a joint motion to recuse.” United States v. Uribe, 80 M.J. 269 (C.A.A.F. 2020) (order granting review). We hold that the military judge abused his discretion but that Appellant is not entitled to relief under Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847 (1988).
This was a contested MJA Article 120 case.
The day before the defense filed a motion for recusal, Maj BJ requested an R.C.M. 802 conference due to his “friendship” with Judge R. Maj BJ cited both parties’ “concern about the perception of fairness of the proceedings, not only from the [Appellant’s] perspective … but also from an outsider[’s] as well.” During this conference, Maj BJ expressed “his concern [with] the ‘optics’ of [Judge R] presiding over a case where [Maj BJ] appeared as counsel.” Maj BJ also expressed “sympathy for [Appellant’s] perspective in general.” The next day the defense interviewed Maj BJ about his relationship with Judge Rosenow.
Note here that the trial counsel had concerns and expressed them--BZ.
Cheers, Phil Cave.
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