Back to square 2

Yesterday, the U.S. Court of Appeals for the Armed Forces ruled on the capital case of Senior Airman Andrew P. Witt of the Air Force. The decision can be found here. In a unanimous opinion by Judge Scott W. Stucky, the court vacated the decision of the U.S. Air Force Court of Criminal Appeals and returned the case to the Judge Advocate General for remand to an appropriate convening authority for a sentence rehearing in accordance with the Air Force court's earlier ruling.

Here are some questions and comments:

• How can it be that the government actually disputed whether the AFCCA's initial decision was en banc? This does not inspire confidence in the administration of justice. The Court of Appeals is properly dismissive of the claim. P. 2 n.1. 

• Ditto for the effort to hide the ball as to who voted how. The Court of Appeals was being kind when (at 7) it described this as "exceedingly problematic," even though the opinion notes at the same time that this is a capital case. Does that make a difference? See also pp. 8-9. Could there conceivably have been a different result if it had been a sexual assault, for example, or a drug case? Does the actual vote make a difference anyway, if one or more participants indeed were disqualified? Not under Williams v. Pennsylvania, 136 S. Ct. 1899, 1909-10 (2016).

• The Court observes (at 5) that "[a] judge who is present for duty does not have the discretion to not participate in an assigned case, absent exceptional circumstances." Doesn't the fact that a case has already been argued constitute exceptional circumstances? Never mind that the record in this old case is presumably extremely voluminous and bringing in new judges would certainly materially delay disposition. Moreover, on a court with no fixed number of judges and frequent rotations on and off, might not this problem recur time and again?

• The Court cites no authority for the linchpin proposition (at 7) that "[t]he refusal of a judge who is present for duty and not disqualified to participate amounts to disqualification." Is it in fact a recusal when a judge who joins an appellate court after a major case has been argued does not participate in en banc consideration? Recusal occurs when a judge is disqualified (e.g., through personal interest or prior involvement). That is a far cry from a judge who does not participate because she was elevated to the bench after oral argument but before the opinion comes down. Query: have there been no cases at CAAF itself where newly-appointed judges did not participate in cases argued before they took the oath (and, for example, where a senior judge or Article III judge rounded out the bench)? In the Editor's view, the failure of several AFCCA judges to particulate was not a recusal at all, and accordingly the remainder of this part of the court's analysis is wide of the mark and the case should not have been vacated.

• The example of a Supreme Court justice who recuses at one stage of a case due to stock ownership but participates when the basis for the recusal is no longer present, mentioned in footnote 10, seems unpersuasive for two reasons. First, it involved a true recusal at the front end, and second, there is no reason to apply a different recusal standard depending on whether a case is civil or criminal (whether or not capital).

• The opinion quotes Chief Judge Robinson O. Everett in United States v. Fimmano: "Of course, this danger would be heightened if . . . the judges had no fixed tenure on an appellate tribunal so that the power to . . . appoint new judges would carry with it the power to change the results of specific cases." (Emphasis in original.) Is this aimed at the fact that the Air Force, like the Navy and Marine Corps, and unlike the Army and the Coast Guard, continues to deny trial and appellate military judges the protection of terms of office of any duration? If so, why not say so?

• Footnote 7 observes that the recusal issue in United States v.  Gorski "is wholly distinguishable," but concludes by saying that the position in which Judge Andrew S. Effron found himself there "is clearly much closer to the situation of the judges in the present case who recused themselves because of some prior involvement." Which is it?

• Why was the relief anything different from simply remanding the case to the Air Force court? Did CAAF conclude that the proceedings there were so bollixed up that the situation with the judges was irreparable (but would perhaps be burned off by the time the case got back there following a sentence rehearing)?