On December 1, 2020, CAAF heard oral arguments in United States v. Uribe, on the following issue:
WHETHER THE LOWER COURT ERRED IN FINDING THE MILITARY JUDGE DID NOT ABUSE HIS DISCRETION IN DENYING A JOINT MOTION TO RECUSE.
Uribe oral arguments and briefs here.
Judge Rosenow served as the military judge in this case, while Maj BJ served as the senior trial counsel (STC) prosecuting the case. Judge Rosenow and Maj BJ met each other in 2012, where they both served as STCs. Judge Rosenow and Maj BJ were stationed together at Joint Base Andrews for approximately one year and would occasionally see each other in their shared office, regularly discussing legal issues and sometimes hanging out, eventually becoming friends. Since then, Maj. BJ attended Judge Rosenow’s bachelor party and Judge Rosenow attended Maj. BJ’s wedding. Their significant others are also acquaintances, but Maj. BJ’s girlfriend did go to the hospital when Judge Rosenow’s wife went into labor, without him.
In the case at issue, Col. DE, who was the original judge, detailed Judge Rosenow to replace him. Maj BJ emailed Judge Rosenow, stating that he discussed with defense counsel regarding their friendship and both sides expressed some concern over the perception of fairness. After discussion, defense filed a motion for the judge to recuse, to which the government did not object. Judge Rosenow denied the motion.
THE APPELLANT’S ARGUMENT
The Appellant argues that the relationship between the trial counsel and the judge went beyond what a regular military friendship would be for a judge and a trial counsellor, which put into question the fairness of the trial. Because of this, the Appellant argues that the judge should have recused himself. Appellant reiterated how Maj BJ attended Judge Rosenow’s destination bachelor party and actively maintained their friendship in a personal setting, both one-on-one and with their significant others.
Appellant argued that the line for how a judge should conduct themselves in terms of a relationship does not need to be defined, because the facts in this case are unique. The Major and Judge are close, personal friends, and this is a cause for concern over the fairness of the trial. If the two had not actively kept up a friendship, there may not be as much concern.
Appellant claims that reversal is required because this error prejudiced SSgt Uribe and undermined public confidence in the judicial process. Under the Liljeberg standard, to determine whether a military judge’s disqualification warrants a remedy, this Court looks at “(1) the risk of injustice to the parties, (2) the risk that the denial of relief will produce injustice in other cases, and (3) the risk of undermining public confidence in the judicial process. Appellant focuses and encourages this Court to weigh the third factor more heavily against the first two factors.
In Appellant’s view, a reasonable person may find that public confidence was undermined, and this is the biggest cause for reversal. Since even the parties agreed that the judge should recuse himself, it would look especially bad to the public.
THE GOVERNMENT’S ARGUMENTS
Conversely, the Government contended that the judge did not abuse his discretion when he decided to not recuse himself. Additionally, arguing that the Court should not review this case de novo. The Government clarified to the Court that the question is whether Judge Rosenow’s findings of fact were erroneous and whether his rulings were arbitrary or without reasonable basis. Finding no actual bias in the military judge's rulings, the government argued that no error existed.
The Government noted the importance of the judge’s disclosure of his relationship in advance, where he made clear he would be impartial. The Government agreed that a judge should recuse himself when there is a reason to question impartiality, but argues that there was not a reason here. Noting that military judges are presumed to be impartial—a high hurdle to overcome. Therefore, without a showing of actual bias, there is no reason for reversal.
The Government then contended that the relationship between Judge Rosenow and Maj BJ was limited, even with his going out with trial counsel on multiple occasions, nothing in the record contradicted that the relationship was limited. Arguing that many times he gave the Appellant favorable rulings and that Appellant's assignment of error is based on a single unfavorable evidentiary ruling. However, judges are expected and required to use their discretion, and it will not always be in the Appellant’s, or the Government’s, favor.
Finally, the Government claimed that the Appellant was unable to show any prejudice. While precedent requires the balancing of all three Liljeberg factors, not any one is dispositive. However, in the Government’s eyes, they argued that the first prong is exceptionally important, and that Uribe experienced no injustice as a result of the Judge’s limited relationship with the trial counsel.
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