"Prosecutors" also serving as judge

In the U.S. Air Force, it is not uncommon for an assigned military judge to be a Reserve judge advocate. That means that in their civilian life they are lawyers for a firm, a federal agency, or solo practitioners.

Some of these judges are currently full-time employees of the U.S. Department of Justice or Assistant U.S. Attorneys. In their civilian role, they are prosecuting in the name of the United States or providing support to those prosecutors.

NIMJ has issued a Policy Statement on the Disqualification of Certain Reservists from Serving as Judges. See United States v. King, No. ACM 39583, 2021 CCA LEXIS 415 (A. F. Ct. Crim. App. Aug. 16, 2021) (memorandum op.), at 16, petition granted No. 22-0008/AF, 2022 CAAF LEXIS 227 (C.A.A.F. Mar. 22, 2022). (The granted issue relates to the excusal of a member and is not related to the judge’s recusal.)

The King case highlights some potential issues for Reserve military judges whose full-time employment is to prosecute in the name of the United States. Courts-martial are prosecuted in the name of the United States. The question is whether these judges should recuse themself from sitting in a court-martial, especially in cases of a bench trial where the military judge is the decider of guilt or not guilt.