Tuesday, March 20, 2018

Knocking out the judge

There's been a remarkable decision from the U.S. Air Force Court of Criminal Appeals. In United States v. Vargas, No. ACM 38991 (A.F.C.C.A. 2018), the primary issue was whether the military judge should have recused himself because he was a material witness with respect to the apparently improper removal of another military judge from sexual assault cases. The recusal issue was directly related to a claim of unlawful command influence (UCI).

Judging by the opinion, which for some reason doesn't name names, a number of lawyers and several judges knew about a concerted effort to remove the original judge. It is unclear whether any of them will be subject to professional discipline or removal from the bench. Such matters are typically handled under the radar.

The Air Force Court held that the second judge's refusal to recuse was an abuse of discretion, set aside the findings and (29-year!) sentence, and authorized a rehearing. It did so without addressing the merits of the UCI issue. See p. 11. But in serious UCI cases, dismissal with prejudice is a possible outcome. This is plainly such a case. That being so, one wonders why the CCA did not order an evidentiary hearing on the UCI issue before a judge from another armed force. Presumably, the UCI issue will now be renewed before whichever judge (from whichever armed force) is lucky or unlucky enough to inherit this case.

Air Force judges currently serve on an at-will basis. Unlike the Army and the Coast Guard, the Air Force (like the Navy and Marine Corps) has never seen fit to create terms of office of any duration by rule. Will the three-year terms with which it will soon have to live under the 2018 Manual for Courts-Martial changes stiffen anyone's back or prevent a recurrence? Might there be some different structure that would better foster public confidence in the administration of justice?

The U.S. Court of Appeals for the Armed Forces should grant review if this case comes to it. It should invite amici curiae to participate. If, as history suggests, the flaw that at least in part explains what happened in Vargas is structural, Congress needs to get back to work now, before the new changes take effect.


  1. Sadly, this is not the first case in which prosecutors have improperly sought to remove judges because they didn't like the decisions of a particular judge. We can go back to the example of United States v. Allen, 33 M.J. 209 (C.M.A. [C.A.A.F.] 1991 for an early attempt; or United States v. Mabe, 33 M.J. 200 (C.M.A. 1991). Before Vargas, we can look to United States v. Sayler, 72 M.J. 415, 423 (C.A.A.F. 2013) [http://www.armfor.uscourts.gov/newcaaf/opinions/2012SepTerm/13-0186.pdf], for a more recent example. There are other cases between Mabe/Allen and Vargas.

    As a result of the Graf/Weiss litigation the U.S. Supreme Court determined that military trial and appellate judges do not require fixed terms of office. That said, shortly after the decision the Army and Coast Guard imposed a three-year ToO by regulation. That has been the rule since 1994. Next year, as a result of the 2018 NDAA, Congress requires a three-year term for all the Services.

    IMHO this is insufficient. Federal magistrate judges have a 10-year term. That is a more reasonable period to ensure that judges are protected from unlawful influences over their decision-making.

    Keep in mind that in Vargas the alleged misconduct occurred within the AF judicial hierarchy and other senior HQ components. Also, some of the actors themselves recognized they were doing something unlawful because they said

    “not to discuss or mention this meeting as it could be improper
    UCI, or words to that effect, and [the SVC] didn’t want defense or others to know there [was] a possible concerted effort to try and get Lt Col [CL] off the bench through ‘loss of confidence.’”

    The question is, would you, a service-member or family member of that accused have confidence you will get a fair trial in an Air Force court-martial? This politicization of military justice belies a claim of fairness, or am I over-reacting?

    Would your military justice system tolerate such actions of prosecutors and judge advocates?

    These developments are most disheartening.

  2. Unfortunately, the Air Force has a sordid history of attempting to manipulate Military Judges and when they don't march to that music, find themselves reassigned. For a much earlier example, with direct AF TJAG involvement, see, U.S. v. Ledbetter, 2 M.J. 37 (CMA 1976), and the appendix thereto for an equally egregious process.

  3. Two Extra Credit questions:

    First, did anyone violate Article 98(2), UCMJ (or attempt to do so)?

    §898. Art. 98. Noncompliance with procedural rules

    Any person subject to this chapter who-
    . . . (2) knowingly and intentionally fails to enforce or comply with any provision of this chapter regulating the proceedings before, during, or after trial of an accused;
    shall be punished as a court-martial may direct.

    Second, if the answer is Yes, what are the chances that anyone will be charged/actually punished?


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