Walker v. United States , 60 M.J. 354 ( 2004 )

IN THE CASE OF
Wade L. WALKER, Lance Corporal
U.S. Marine Corps, Petitioner
v.
UNITED STATES, Respondent
No. 04-8025
Crim. App. No. 9501607
United States Court of Appeals for the Armed Forces
Argued October 26, 2004
Decided December 9, 2004
EFFRON, J., delivered the opinion of the Court, in which
GIERKE, C.J., CRAWFORD, BAKER, and ERDMANN, JJ., joined.
Counsel
For Petitioner: Lieutenant Jason S. Grover, JAGC, USN
(argued); Lieutenant Michael J. Navarre, JAGC, USNR, and
Hardy Vieux, Esq. (on brief).
For Respondent: Captain Glen R. Hines, USMC (argued);
Lieutenant Colonel William K. Lieutzau, USMC (on brief).
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Walker, No. 04-8025/MC
Judge EFFRON delivered the opinion of the Court.
At a general court-martial composed of officer members,
Petitioner was convicted, contrary to his pleas, of two
specifications of conspiracy, two specifications of violating a
base order, two specifications of premeditated murder, one
specification of felony murder (later dismissed), one
specification of robbery, one specification of adultery, and one
specification of kidnapping, in violation of Articles 81, 92,
118, 122 and 134, Uniform Code of Military Justice (UCMJ), 10
U.S.C. §§ 881, 892, 918, 922, and 934. He was sentenced to
death, forfeiture of all pay and allowances, and reduction to E-
1. The convening authority approved the sentence as adjudged.
The case is pending review at the United States Navy-Marine
Corps Court of Criminal Appeals.
Petitioner has requested that our Court provide
extraordinary relief in the nature of a writ of mandamus and a
writ of prohibition under 28 U.S.C. § 1651(a) on the following
two issues:
I
WHETHER APPELLANT [PETITIONER] IS ENTITLED
TO A NEW STAFF JUDGE ADVOCATE’S
RECOMMENDATION AND CONVENING AUTHORITY’S
ACTION WHERE THE SJA WHO PREPARED THE REVIEW
WAS DISQUALIFIED BECAUSE THE ATTORNEY
REPRESENTING THE U.S. GOVERNMENT IN
APPELLANT’S CASE SUBSTANTIALLY PARTICIPATED
IN PREPARING THE SJA’S RECOMMENDATION.
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II
WHETHER UNDER ARTICLE 66(A), UCMJ, THE PANEL
REVIEWING THE PETITIONER’S CASE IS PROPERLY
ASSIGNED, AND WHETHER THERE CAN BE TWO CHIEF
JUDGES OF THE NAVY-MARINE CORPS COURT OF
CRIMINAL APPEALS.
For the reasons set forth below, we grant the petition for
extraordinary relief in part. The court below may proceed with
review of Petitioner’s court-martial, provided that such review
is conducted by a panel to which judges have been assigned by a
judge designated by the Judge Advocate General to serve as chief
judge in Petitioner’s case. In all other respects, the petition
for extraordinary relief is denied without prejudice to further
consideration in the normal course of appellate review.
I. PROCEDURAL BACKGROUND
In this capital case, the convening authority approved the
adjudged sentence on June 21, 1995. The record was transmitted
to the Navy-Marine Corps Court of Criminal Appeals, where it was
assigned to Panel 3.
During the initial review of the case, the Court of
Criminal Appeals, acting through Panel 3, set aside the
convening authority’s action and remanded the case for post-
trial action by a different convening authority. United States
v. Walker, No. 9501607 (N-M. Ct. Crim. App. Sept. 13, 1996).
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The new convening authority approved the adjudged sentence on
July 10, 1998, and the case was placed on the docket of the
Court of Criminal Appeals in August 1998.
Over the next five years, the composition of Panel 3
changed at various times. As a result of these changes and the
recusal of several judges, the panel had only one participating
member, Judge Suszan, when it issued an order on February 12,
2004, denying a pending defense motion. On February 25,
Petitioner requested reconsideration of the motion, as well as
one other that had been denied by a single-judge panel, on the
grounds that the panel lacked the requisite quorum of two
judges. See United States v. Lee, 54 M.J. 285, 286-87 (C.A.A.F.
2000); Courts of Criminal Appeals Rules of Practice and
Procedure, Rule 4(a), 44 M.J. LXIII, LXV (1996).
Under typical circumstances, the deficiency resulting from
lack of a quorum could have been readily rectified by the chief
judge of the Court of Criminal Appeals. Under Article 66(a),
UCMJ, 10 U.S.C. § 866(a), the chief judge could have filled the
panel vacancies by assigning non-disqualified judges to sit on
the panel. If the court as a whole did not have a sufficient
number of non-disqualified judges to fill the panel, the Judge
Advocate General could have appointed additional judges for
service on the court, see United States v. Morgan, 47 M.J. 27,
29 (C.A.A.F. 1997), and the chief judge then could have filled
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the panel with non-disqualified judges under Article 66(a). In
the present case, however, the chief judge had disqualified
himself from involvement in the present case due to his prior
role in the litigation as the Director of the Appellate
Government Division. See United States v. Lynn, 54 M.J. 202,
205 (C.A.A.F. 2000).
Subsequent to Petitioner’s motion for reconsideration, the
Clerk of Court of the Court of Criminal Appeals notified the
Judge Advocate General on March 23, 2004, that the panel did not
have a quorum. According to the Clerk, Judge Villemez was the
only remaining judge on the court in active service who was not
disqualified from joining Judge Suszan on the panel. The Clerk
also identified four Naval Reserve appellate judges who were
available for service.
Citing Canon 2A of the American Bar Association Model Code
of Judicial Conduct, the Clerk further noted that it would be
inappropriate for the chief judge -- who had recused himself
from the case -- to designate members of the panel. The Clerk
observed that such an action would not be consistent with the
admonition of Canon 2A against taking actions that do not
promote “public confidence in the integrity and impartiality of
the judiciary.”
Consequently, the Judge Advocate General issued a
memorandum to Judge Villemez on March 25, entitled “Designation
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of Chief Judge, Navy-Marine Corps Court of Criminal Appeals,”
which contained the following:
1. Pursuant to [Article 66, UCMJ], you are
hereby designated as Chief Judge, Navy-
Marine Corps Court of Criminal Appeals, for
the cases of United States v. Lance Corporal
Walker and United States v. Lance Corporal
Kenneth G. Parker [a companion case] only.
You will determine, as appropriate, a panel
of qualified appellate judges to consider
said cases. You will designate, again as
appropriate, a senior judge for any panel
created.
2. Your designation is as a direct result of
the current Chief Judge, Colonel W. Charles
Dorman, USMC, being recused from said cases.
Given Colonel Dorman’s recusal, there is no
Chief Judge with regard to these cases.
3. Your designation as Chief Judge is
limited to said cases and associated
responsibilities. Your designation shall
not interfere with the duties of Colonel
Dorman as he exercises his responsibilities
as Chief Judge for all other cases before
the court.
4. Your designation is effective
immediately. You will be relieved of duty
as Chief Judge for said cases upon the
earlier of your detachment from the court,
or the assignment of another appellate judge
eligible to make such panel assignments for
said cases.
The Judge Advocate General’s memorandum apparently was not
received by the court until April 13, 2004. In the meantime,
Chief Judge Dorman issued a memorandum to all court personnel on
March 29 entitled “Panel Assignments.” Under the memorandum,
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Panel 3 -- the panel to which Petitioner’s case was assigned --
was composed of Judge Suszan, as well as two of the judges
disqualified from acting in Petitioner’s case. The memorandum
also included a new court policy establishing an order of
precedence among judges on the court for the purpose of
exercising the responsibility to make panel assignments in a
particular case in the event of the absence or recusal of the
chief judge.
After the court received the Judge Advocate General’s
letter on April 13, Judge Villemez exercised his newly-granted
authority to determine a panel for Petitioner’s case and issued
a memorandum on April 14 entitled “Panel assignments in the case
of United States v. Lance Corporal Wade L. Walker.” In this
memorandum, Judge Villemez assigned himself and Judge Mulrooney
to serve with Judge Suszan on the panel in the present case.
Judge Villemez specifically cited the Judge Advocate General’s
March 25 letter as granting him the authority to establish the
panel.
The Navy subsequently announced that Judge Villemez would
retire on July 1, 2004. In contrast to the Judge Advocate
General’s earlier designation of Judge Villemez to serve as
chief judge for Petitioner’s case, the Judge Advocate General
did not designate a judge to succeed Judge Villemez upon his
retirement. On June 29, Petitioner filed a motion in our Court
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United States v. Walker, No. 04-8025/MC
to stay the proceedings before the Court of Criminal Appeals,
pending proper designation of a chief judge by the Judge
Advocate General. On the same day, Petitioner filed the request
for extraordinary relief presently before us. We subsequently
issued a show cause order, ordered a stay of proceedings,
received briefs, and heard oral argument on the petition for
extraordinary relief.
II. DISCUSSION
A. COMPOSITION OF THE PANEL
AT THE COURT OF CRIMINAL APPEALS
Article 66(a), UCMJ, which governs the composition of the
Courts of Criminal Appeals, assigns one set of responsibilities
to the Judge Advocate General and a distinct set of
responsibilities to the chief judge of the court. Under the
Article, each Judge Advocate General performs two primary
duties. First, the Article requires each Judge Advocate General
to “establish a Court of Criminal Appeals which shall be
composed of one or more panels . . . [each of which] shall be
composed of not less than three appellate military judges.”
Article 66(a), UCMJ. Second, the Article requires the Judge
Advocate General to “designate as chief judge one of the
appellate military judges of the Court of Criminal Appeals . . .
.” Id.8
United States v. Walker, No. 04-8025/MC
Once the court is established and the chief judge is
designated, responsibility for assignment of judges within the
court is vested by statute in the chief judge. “The chief judge
shall determinate on which panels of the court the appellate
judges assigned to the court will serve and which military judge
assigned to the court will act as the senior judge on each
panel.” Id. This provision reflects a determination by
Congress to create a degree of separation between the Judge
Advocate General and internal assignments within the court.
The statute does not provide expressly for a judge to
perform the duties of the chief judge when the chief judge is
absent or recused. The joint rules for the Courts of Criminal
Appeals, promulgated under Article 66(f), 10 U.S.C. § 866(f),
are likewise silent on this matter. See Courts of Criminal
Appeals Rules of Practice and Procedure, 44 M.J. LXIII-LXXX
(1996). Until the problem with recusal arose in the present
case, the Navy-Marine Corps Court of Criminal Appeals did not
have any applicable internal rule.
Petitioner contends that when Chief Judge Dorman recused
himself from acting in Petitioner’s case, the Judge Advocate
General was not authorized to designate Judge Villemez to serve
as the chief judge with respect to Petitioner’s case.
Petitioner asserts that because Article 66(a) permits only “one”
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United States v. Walker, No. 04-8025/MC
person to be designated as chief judge, the designation of Judge
Villemez impermissibly produced “more than one” chief judge.
According to Petitioner, the responsibility for panel
assignments should have been exercised directly by the Judge
Advocate General. In taking that position, Petitioner would
have us rigidly interpret one portion of Article 66(a) by
narrowly applying the provision authorizing the Judge Advocate
General to designate “one” chief judge. At the same time,
Petitioner would have us loosely interpret another portion of
the statute by overlooking the requirement in the same rule that
identifies the chief judge, not the Judge Advocate General, as
the official responsible for panel assignments. Petitioner has
not offered a persuasive basis for the suggestion, inherent in
his argument, that we should apply such inconsistent approaches
to interpret different provisions within the same statute.
Recusal in the event of a conflict of interest is a
critical element in assuring public confidence in the fairness
of the administration of justice. While courts typically have
either statutory or internal procedures to designate an acting
chief judge when the chief judge is recused, see, e.g., Article
143(a)(5), UCMJ, 10 U.S.C. § 943(a)(5), the absence of such a
procedure does not preclude an appropriate authority from
ensuring the continuity of a court’s operations in the event of
the chief judge’s recusal.
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Petitioner acknowledges that the functions of the chief
judge must be performed by another official because the Court of
Criminal Appeals would otherwise be brought to a halt when
action by the chief judge is required in a case or series of
cases from which the chief judge is recused. Petitioner
suggests that those functions should be performed by the Judge
Advocate General, but he has not provided us with a persuasive
reason for concluding that Congress intended that the Judge
Advocate General directly perform a critical function --
assignment of a judge to a panel to hear a specific case -- that
is committed to the chief judge by the text of the statute. The
structure of the statute reflects a congressional preference for
a division of responsibilities between the Judge Advocate
General and the chief judge of the Court of Criminal Appeals.
This preference is best furthered by concluding: (1) that the
Judge Advocate General may perform the function assigned to that
officer under Article 66(a) -- designating an appellate military
judge as chief judge -- for a particular case or cases to fill
the void caused by the recusal of the regularly serving chief
judge; and (2) that the person serving as chief judge for a case
or series of cases may perform in those cases the function
assigned to the chief judge under Article 66(a) -- assigning
judges to serve on the panel or panels that will hear those
cases.
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Although the chief judge of the Court of Criminal Appeals
promulgated a policy on March 29, 2004, providing for
designation of a person to perform the functions of the chief
judge in the event of an absence or recusal, the court did not
apply that policy to the vacancies on the panel reviewing
Petitioner’s case in the spring of 2004. Instead, as detailed
above, the court did not make assignments to that panel until
the Judge Advocate General designated a judge to perform that
function in Petitioner’s case.
When a judge is recused, the judge should not take action
to influence the appointment of his or her replacement. See
Richard E. Flamm, Judicial Disqualification: Recusal and
Disqualification of Judges, § 22.3 (1996). A chief judge is not
necessarily disabled from issuing generally applicable rules
that affect a wide range of cases before the court, even if the
rule happens to apply to a case in which the chief judge is
recused. If, however, the rule will be applied only in that
case or a readily identifiable set of cases in which the chief
judge is recused, the rule must be drafted or applied in a
manner that preserves the effect of the recusal. Otherwise, the
recusal will not serve the function of Canon 2A of the Model
Code of Judicial Conduct with respect to promoting “public
confidence in the integrity and impartiality of the judiciary.”
The fact that the court in the spring of 2004 did not utilize
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the chief judge’s succession policy in the present case ensured
that the policy would not be applied in a manner that would
undermine the effect of the recusal.
Although the court properly relied on the Judge Advocate
General to select a chief judge for Petitioner’s case in the
spring of 2004, the court did not follow that approach when
Judge Villemez -- the acting chief judge selected by the Judge
Advocate General -- retired several months later. Instead, the
Clerk of Court stated that the court would rely on Chief Judge
Dorman’s memorandum to select an acting chief judge for the
present case, an action that the court would have implemented
but for the stay issued by our Court. Reliance on the
succession policy was impermissible under the circumstances of
this case. The chief judge, whose recusal remained in place,
promulgated the policy in the midst of the litigation from which
he was recused, and the impact on that litigation was readily
identifiable.
The Government has not established the necessity of
requiring reliance on the chief judge’s memorandum now, when it
was not necessary for the court do so earlier in the year. A
readily available procedure for appointment of a chief judge is
available -- designation by the Judge Advocate General. That
procedure, which was used earlier in the year, remains available
to move this case forward.
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The Government suggests that issuance of the writ is not
necessary and that the case may proceed without the assignment
of an additional judge because participation by the two
remaining judges will establish a quorum. See Lee, 54 M.J. at
286-87. Panel composition, however, is a responsibility
committed to the judiciary, not the parties. According to the
Clerk of Court, the Court of Criminal Appeals, which has not yet
conducted significant proceedings on the merits of the pending
appeal, anticipated proceeding with a full, three-judge panel.
To date, the Court of Criminal Appeals has not received
briefs from the parties on the merits of the findings and
sentence adjudged by the court-martial. The review, in this
capital case, is likely to require a significant commitment of
time and effort by that court. It would make little sense for
the Court of Criminal Appeals to undertake the intensive review
required in a capital case all the while knowing that the
composition of the court -- an even number of judges -- could
produce a decision, upon completion of review, in which the
court would be equally divided on the findings or the sentence
or both. The plan of the Court of Criminal Appeals, as
described by the Clerk of Court, to proceed with a full panel
recognizes that it would not be desirable to proceed with a two-
judge panel, and we need not address whether it would be
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appropriate for the court to do so in the present posture of
this litigation.
Review under Article 66 is a critical element in achieving
finality in court-martial proceedings. Consideration of a case
by a panel composed of properly assigned appellate judges is an
essential prerequisite to the conduct of appellate review under
Article 66. Petitioner’s case currently is pending Article 66
review before a court lacking a properly designated official who
can perform the functions of the chief judge in making panel
assignments. This is an extraordinary circumstance which
directly and adversely affects the normal course of appellate
review. Issuance of an extraordinary writ by our court is
essential to ensure that Petitioner’s case is before a panel
authorized to conduct the normal course of appellate review.
B. REVIEW OF FINDINGS AND SENTENCE
Petitioner also has challenged the propriety of the most
recent action taken by the convening authority. Alleged errors
in the recommendations of a staff judge advocate or actions of a
convening authority are considered routinely in the appellate
process. Petitioner has not demonstrated the necessity for
addressing this assignment of error through an extraordinary
writ.
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III. CONCLUSION
Petitioner’s motion for extraordinary relief is granted in
part. Assignment of judges to the panel reviewing Petitioner’s
court-martial shall not be made by or under the direction of a
chief judge recused from this case. The Judge Advocate General
shall designate an appellate military judge to perform the
functions of the chief judge in view of the chief judge’s
recusal in the present case. After such a judge is designated
to perform the duties of the chief judge, and upon the
assignment of non-disqualified appellate judges to the
appropriate panel by that designated chief judge, the stay is
lifted and the court below may proceed with review of
Petitioner’s court-martial. Any issue as to whether a prior
action of the court below was taken by a properly designated
panel, or whether such an action otherwise should be
reconsidered, shall be decided, in the first instance, by the
court below. Any further question as to whether a prior or
future panel in the present case was designated properly also
shall be decided, in the first instance, by the court below. In
all other respects the petition is denied without prejudice to
further consideration of the issues stated therein during the
normal course of appellate review.
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