UNITED STATES, Appellee
v.
Christopher A. GREATTING, Staff Sergeant
U.S. Marine Corps, Appellant
No. 07-0575
Crim. App. No. 200401945
United States Court of Appeals for the Armed Forces
Argued January 16, 2008
Decided May 6, 2008
ERDMANN, J., delivered the opinion of the court, in which
EFFRON, C.J., and BAKER and RYAN, JJ., joined. STUCKY, J.,
filed a separate dissenting opinion.
Counsel
For Appellant: Lieutenant Commander Kristina B. Reeves, JAGC,
USN (argued); Lieutenant Commander M. Eric Eversole, JAGC, USN
(on brief).
For Appellee: Major Brian K. Keller, USMC (argued); Commander
Paul C. LeBlanc, JAGC, USN, and Lieutenant Commander Jessica M.
Hudson, JAGC, USN.
Military Judge: R. S. Chester
This opinion is subject to revision before final publication.
United States v. Greatting, No. 07-0575/MC
Judge ERDMANN delivered the opinion of the court.
Staff Sergeant Christopher A. Greatting was the staff
noncommissioned officer-in-charge of the K-9 Military Working
Dog Section (K-9 Section) at Camp Pendleton. Consistent with
his pleas at a general court-martial, Greatting was convicted of
a number of charges arising from his supervision of the K-9
Section, as well as wrongful use of marijuana. At trial the
defense moved for the military judge’s recusal because he had
presided over four companion cases and had privately discussed
certain aspects of those cases with the convening authority’s
staff judge advocate (SJA). The motion was denied. The United
States Navy-Marine Corps Court of Criminal Appeals affirmed the
findings of guilty and the sentence. United States v.
Greatting, No. NMCCA 200401945, 2007 CCA LEXIS 108, at *20, 2007
WL 1709533, at *8 (N-M. Ct. Crim. App. Mar. 29, 2007). We
granted review to consider whether the military judge’s decision
not to recuse himself was an abuse of discretion. 65 M.J. 345
(C.A.A.F. 2007).
“[A] military judge shall disqualify himself or herself in
any proceeding in which that military judge’s impartiality might
reasonably be questioned.” Rule for Courts-Martial (R.C.M.)
902(a). Presiding over companion cases does not alone
constitute grounds for recusal. United States v. Lewis, 6 M.J.
43, 45 (C.M.A. 1978). However, the ex parte discussion that
2
United States v. Greatting, No. 07-0575/MC
took place between the military judge and the SJA prior to
Greatting’s court-martial and while clemency matters and appeals
in the companion cases were pending would lead a reasonable
person to question the military judge’s impartiality.
Considering the factors articulated by the Supreme Court in
Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847,
864 (1988), we conclude that Greatting is entitled to relief.
Accordingly, we reverse the Court of Criminal Appeals, set aside
the findings and sentence, and authorize a rehearing.1
BACKGROUND
As the staff noncomissioned officer in charge of the K-9
Section at Camp Pendleton, Greatting was responsible for
ensuring that the handlers and the dogs were properly trained,
that there were proper records to document the training, and
that the kennel was run in accordance with applicable
regulations and orders. Greatting and his subordinates worked
together to falsify paperwork that certified the dogs had
completed aspects of a training regimen that were never
undertaken.
1
We also granted review as to whether the Court of Criminal
Appeals erred by failing to afford meaningful relief after
determining that Greatting was prejudiced by the denial of his
due process right to a timely review and appeal. 65 M.J. 345
(C.A.A.F. 2007). In light of our resolution of this case on the
recusal issue, we decline to reach that issue.
3
United States v. Greatting, No. 07-0575/MC
In addition, with Greatting’s knowledge and consent, some
members of the unit boarded unauthorized non-military dogs at
the base kennel. One of these non-military dogs, a trained
attack dog, was seriously injured when the dog handlers tried to
control him. Due to the dog’s injuries, Greatting’s
subordinates were required to put the dog down. Greatting
subsequently lied to law enforcement agents about the dog,
reporting that the dog was fine after he knew the dog had been
killed.
Four subordinate Marines in the K-9 Section were also
convicted, consistent with their pleas, of charges arising from
this conduct. All of the companion cases were heard before
Judge C. Staff Sergeant Ruben Cadriel was convicted on April
16, 2003, at a general court-martial. In addition to charges
arising from the operation of the K-9 Section, Cadriel was also
convicted of assault and disobeying a superior commissioned
officer. He was sentenced by Judge C to a bad-conduct
discharge, confinement for four years, and reduction to E-1. On
October 4, 2004, the convening authority approved the sentence,
but suspended confinement in excess of seventy-five days
pursuant to Cadriel’s pretrial agreement.
The other three Marines were tried by special court-
martial. Corporal Aaron L. Hutchings was convicted on July 1,
2003, Corporal Jamie A. Marmolejo on July 7, 2003, and Sergeant
4
United States v. Greatting, No. 07-0575/MC
Christian M. Blue on September 10, 2003. Hutchings was
sentenced to reduction to E-3. Marmolejo was sentenced to
reduction to E-1 and hard labor without confinement for three
months. Blue was sentenced to reduction to E-2 and confinement
for seventy-five days. The convening authority approved
Hutchings’s sentence on October 31, 2003. On February 6, 2004,
the convening authority approved only the reduction in
Marmolejo’s case. Blue’s sentence was approved on May 28, 2004.
Greatting’s court-martial was convened on June 5, 2003 and
he was arraigned on August 11, 2003. By the date of Greatting’s
arraignment, the court-martial proceedings for Cadriel,
Hutchings, and Marmolejo were completed, while Blue’s court-
martial was still pending. The convening authority had yet to
take action in any of the cases.
At Greatting’s arraignment, Judge C informed the parties:
I have detailed myself to this court-martial in
my capacity as the Circuit Military Judge for the
Sierra Judicial Circuit. . . .
I will not be a witness for either side in this
case, and I am not aware of any matters which I
believe may be a grounds for challenge.
However, I would note for the record that I did
preside over the cases of United States vs. Cadriel,
Hutchings, and Marmolejo, which are all, I believe,
related cases to this case.
Judge C asked if either side wanted to conduct voir dire or
challenge his participation. Greatting’s defense counsel
requested the opportunity to reserve both “given the fact that
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United States v. Greatting, No. 07-0575/MC
we do not know who is going to be the ultimate military judge,
although you do have the assignment authority.” Judge C
indicated that it was his intention to preside over the case but
he would allow the defense to revisit voir dire and challenge at
a later time. Greatting also reserved entering pleas at that
time.
Court-martial proceedings for the last of Greatting’s
subordinates, Blue, concluded on September 10, 2003. About two
weeks later, on September 23, 2003, Greatting signed a pretrial
agreement, which was approved by the convening authority on
September 30, 2003. The pretrial agreement provided, in part,
that confinement in excess of fifteen months would be suspended,
as would any forfeitures. Automatic forfeitures would be
deferred for the benefit of Greatting’s wife.
Greatting’s court-martial reconvened on October 30, 2003.
Prior to Greatting entering his pleas, his defense counsel
requested the opportunity to conduct voir dire of the military
judge. Judge C acknowledged that the underlying events in this
case were the same as the events in the four companion cases in
which he had presided. While he agreed that the companion cases
dealt with the purported role played by Greatting in the various
offenses, he stated that he could not recall the specifics of
each case or whether each case touched upon Greatting.
Judge C went on to state:
6
United States v. Greatting, No. 07-0575/MC
If I had to say, my recollection was that Staff
Sergeant Cadriel had a greater involvement in what was
going on, although some of the charges which aren’t
here today, the accused is not going to plead guilty
to today, involved drinking in the work spaces; and I
believe Staff Sergeant Greatting was implicated in
those cases that involved that allegation and was
implicated in those as having approved that conduct as
well as the falsification of certain records, the
failure to train dogs and test them to certain
standards.
The defense counsel then asked Judge C whether he had
discussed these cases with anyone other than a fellow military
judge. Judge C responded that he had, as it was his practice to
conduct post-trial critiques with counsel. He also stated that
he talked to “the staff judge advocate and probably his
deputy[,] not about [Greatting’s] case other than that it was
coming, they mentioned it was coming, but about the other
cases.” The military judge recounted his interaction with the
SJA as follows:
With respect to Cadriel, it was that I thought
they sold the case too low given his culpability, his
admissions in the Court, given the severity of his
conduct, and the repercussions of his conduct on the
junior Marines that were involved in the section, the
security of this installation.
. . . .
I think I also mentioned following the other, as
you indicated three cases and I think that’s right,
the other three cases, that I felt given the level of
culpability of Cadriel versus the younger Marines who
were perhaps more guided or motivated by misguided
loyalty to the two staff NCO’s that they worked for, I
questioned the appropriateness of their being at a
special court-martial.
7
United States v. Greatting, No. 07-0575/MC
Judge C stated that he would not second-guess or presuppose
what the pretrial agreement provided for in Greatting’s case and
that he had no preconceived ideas of what the sentence should
be. He said that he believed he would be able to put the other
cases out of his mind and judge the case on the facts introduced
in the proceeding before him. Following voir dire, the defense
counsel moved for Judge C to recuse himself on the basis of
implied bias under R.C.M. 902(a). The motion was denied.
After Judge C accepted Greatting’s pleas and conducted a
sentencing hearing, he sentenced Greatting to six months
confinement, reduction to E-1, and a bad-conduct discharge. The
confinement limitation of fifteen months in the pretrial
agreement was therefore not triggered. The convening authority
approved the sentence but reduced confinement to ninety days as
an act of clemency.
On appeal to the Court of Criminal Appeals Greatting
argued, inter alia, that the military judge abused his
discretion when he denied the motion to recuse himself. The
lower court held that the military judge was not disqualified
and did not abuse his discretion by presiding over the case.
Greatting, 2007 CCA LEXIS 108, at *9-*11, 2007 WL 1709533, at
*4.
8
United States v. Greatting, No. 07-0575/MC
DISCUSSION
Before this court, Greatting renews his argument that Judge
C abused his discretion in denying the motion to recuse himself.
Noting that Judge C presided over four companion cases and
provided advice to the SJA regarding the proper forums and
sentences in those cases, Greatting contends that Judge C’s
activities created the appearance that the military judge had
become an advocate for the Government. As such, Greatting
argues, Judge C’s actions created a reasonable question
regarding his impartiality and he should have recused himself on
the grounds of implied bias under R.C.M. 902(a).
The Government responds that there was no implied bias and
characterizes Judge C’s discussion with the SJA as a “personal
and private conversation between two military officers regarding
already completed courts-martial.” The Government goes on to
contend that there was no risk to fairness or public perception
because Greatting was the last of the coconspirators to enter
pleas of guilty and sign a pretrial agreement, his adjudged
sentence was far less than the next most culpable member of the
conspiracy, and he received clemency resulting in only ninety
days of confinement.
“An accused has a constitutional right to an impartial
judge.” United States v. Butcher, 56 M.J. 87, 90 (C.A.A.F.
2001) (citation and quotation marks omitted). R.C.M. 902(a)
9
United States v. Greatting, No. 07-0575/MC
provides that “a military judge shall disqualify himself or
herself in any proceeding in which that military judge’s
impartiality might reasonably be questioned.” In reviewing a
military judge’s ruling on a recusal motion, we consider the
facts and circumstances under an objective standard. Butcher,
56 M.J. at 91. The test is whether there was “[a]ny conduct
that would lead a reasonable man knowing all the circumstances
to the conclusion that the judge’s impartiality might reasonably
be questioned.” Id. (citation and quotation marks omitted).
It has long been recognized that merely presiding over a
companion case does not constitute grounds for disqualification.
See Lewis, 6 M.J. at 45; United States v. Jarvis, 22 C.M.A. 260,
262, 46 C.M.R. 260, 262 (1973). Were that the sole issue before
us, we would have no hesitation in affirming the action of the
Court of Criminal Appeals. In this case, however, we are
concerned about Judge C’s decision to provide an ex parte
critique to the SJA “and probably his deputy” about the overall
prosecution of the K-9 Section defendants at a time when court-
martial proceedings had not yet commenced in one of the cases,
and where clemency matters and appeals had not been completed in
any of the cases.
The Uniform Code Military Justice (UCMJ) and the Manual for
Courts-Martial, United States give the convening authority
significant power and discretion in proceedings related to
10
United States v. Greatting, No. 07-0575/MC
trials by courts-martial. See Article 60, UCMJ, 10 U.S.C. § 860
(2000); R.C.M. 407; R.C.M. 705; R.C.M. 1107. The convening
authority’s SJA is responsible for providing critical legal
advice on these issues. Article 60(d), UCMJ; R.C.M. 105(a);
R.C.M. 406; R.C.M. 1106; R.C.M. 1113(c)(1)(B). We have
previously held that the nature of relationships between a
military judge and non-judge members of the judge advocate
community requires increased vigilance to ensure propriety:
The interplay of social and professional
relationships in the armed forces poses particular
challenges for the military judiciary. Both before
and after service in the judiciary, a judge advocate
typically will serve in a variety of assignments as a
staff attorney and supervisor. Such assignments
normally include duties both within and outside the
field of criminal law. In the course of such
assignments, the officer is likely to develop numerous
friendships as well as patterns of societal activity.
. . . When assigned to the judiciary, the military
judge frequently will find himself or herself in close
and continuing contact with judge advocates outside
the courtroom. . . . In light of these [and other]
circumstances, members of the military judiciary must
be particularly sensitive to applicable standards of
judicial conduct.
Butcher, 56 M.J. at 91.
We have also recognized that:
Ex parte contact with counsel does not
necessitate recusal under R.C.M. 902(a), particularly
if the record shows that the communication did not
involve substantive issues or evidence favoritism for
one side. However, an ex parte communication which
might have the effect or give the appearance of
granting undue advantage to one party cannot be
condoned.
11
United States v. Greatting, No. 07-0575/MC
United States v. Quintanilla, 56 M.J. 37, 79 (C.A.A.F. 2001)
(citation and quotation marks omitted). We believe the same
holds true when considering the propriety of ex parte contact
between a military judge and an SJA.
Here, a judicial officer provided case-specific criticism
to the convening authority’s SJA and “probably his deputy” about
companion cases. While clearly aware that Greatting’s case was
coming to trial, Judge C told the SJA that the convening
authority had sold Cadriel’s case “too low” and mentioned that
the younger marines “were perhaps more guided or motivated by
misguided loyalty to the two staff NCO’s that they worked for.”
He provided this criticism in an ex parte conversation with the
very individual responsible for advising the convening authority
on all aspects of the K-9 Section cases, including the terms of
pretrial agreements and clemency recommendations. And he did so
before clemency matters had been resolved in any of the
companion cases and possibly before the pretrial agreement in
Greatting’s case had been finalized. Also, after commenting on
the potential culpability of Greatting as one of the “two staff
NCOs”, he later assigned himself Greatting’s case.
In the circumstances of this case, we conclude that the
military judge’s ex parte discussion with the SJA would lead a
reasonable person, knowing all the circumstances, to the
conclusion that the military judge’s impartiality might
12
United States v. Greatting, No. 07-0575/MC
reasonably be questioned. We hold that he was obliged to recuse
himself under R.C.M. 902(a) and that he abused his discretion by
not doing so.2
Having found that the military judge abused his discretion
by denying the recusal motion, we next consider whether relief
is warranted. In making this determination we have relied on
the factors set forth in Liljeberg, a case in which the Supreme
Court considered whether reversal was warranted where a judge
had erroneously failed to recuse himself under 28 U.S.C. §
455(a), the civilian equivalent of R.C.M. 910(a). 486 U.S. at
858-64; see Butcher, 56 M.J. at 92; see also Quintanilla, 56
M.J. at 80-81. These three factors are “the risk of injustice
to the parties in the particular case, the risk that the denial
of relief will produce injustice in other cases, and the risk of
undermining the public’s confidence in the judicial process.”
Liljeberg, 486 U.S. at 864.
Greatting argues that relief is warranted because the
conversation had a detrimental impact on his pretrial agreement
to the extent it capped the maximum period of confinement at
2
Our consideration of this case is limited to the issue of
implied bias under R.C.M. 902(a). We need not and do not reach
questions of actual bias. Contrary to the suggestion of the
dissent, therefore, our finding of error does not suggest that
Judge C was specifically biased toward a harsh sentence in this
case. United States v. Greatting, ___ M.J.___ (3) (C.A.A.F.
2008) (Stucky, J., dissenting). Nor have we assumed that Judge
C approached the case with any sort of vengeful agenda. Id. at
___ (2-3).
13
United States v. Greatting, No. 07-0575/MC
fifteen months, well beyond the seventy-five day maximum in
Cadriel’s pretrial agreement.3 Greatting also argues that public
confidence and future accused are at risk if the court condones
a system that allows a military judge to interfere in the
referral process and a convening authority’s decision to
negotiate a pretrial agreement.
In response, the Government contends that there is no risk
of injustice to Greatting where his adjudged sentence of six
months was lower than the confinement limitation of fifteen
months provided for in the pretrial agreement, and where the
military judge overruled Government objections to defense
sentencing witnesses. The Government also contends that the
fact that Greatting was the last to enter a pretrial agreement
explains the disparity between the confinement term in his
agreement and the confinement term in the pretrial agreements of
his codefendants. The Government maintains that “[n]o
reasonable person, apprised of the facts in this case and the
companion cases, would believe that the judicial process did not
work where [Greatting] pled guilty, presented sentencing
3
Greatting alleged in his brief that the pretrial agreement in
each of the companion cases limited confinement to seventy-five
days while Greatting’s agreement extended to fifteen months.
Greatting does not point to evidence in the record to support
this assertion. The convening authority’s discussion of the
companion cases in Greatting’s court-martial order supports this
assertion only as to Cadriel.
14
United States v. Greatting, No. 07-0575/MC
evidence, and ultimately received an approved and executed
sentence extending only to 90 days and a bad-conduct discharge.”
Focusing first on fairness to the parties, we conclude that
the conversation between Judge C and the SJA about the sentence
limitations in Cadriel’s pretrial agreement could be seen to
have had a negative impact on the terms of Greatting’s pretrial
agreement. The record does not make clear exactly when the
conversation took place, but it is apparent that the
conversation could have occurred before the convening authority
agreed to the terms of Greatting’s pretrial agreement. While
other factors may well have contributed to the disparity between
the two confinement caps, the record establishes a risk that the
military judge’s conversation with the SJA adversely affected
Greatting’s position in pretrial negotiations.
As to the second factor, risk that denial of relief will
produce injustice in other cases, we stated in Butcher that
under the facts of that case it was “not necessary to reverse
the results of the present trial in order to ensure that
military judges exercise the appropriate degree of discretion in
the future.” 56 M.J. at 93. Nevertheless, we do not believe
that considerations under this factor caution us against
awarding relief. As stated in Liljeberg, “providing relief in
cases such as this will not produce injustice in other cases; to
the contrary, [enforcing R.C.M. 902(a)] may prevent a
15
United States v. Greatting, No. 07-0575/MC
substantive injustice in some future case by encouraging a
[military] judge . . . to more carefully examine possible
grounds for disqualification . . . .” 486 U.S. at 868.
We now turn to the third factor, whether the circumstances
of this case create the risk of undermining the public’s
confidence in the judicial process. In an ex parte conversation
with the SJA, Judge C criticized the manner in which the
convening authority was handling the K-9 Section defendants,
while Greatting’s case was pending and before the convening
authority had considered clemency in any of the cases. Such
interference by a judicial officer into matters entirely within
the discretion of the convening authority is not only
inappropriate, it gives the appearance that Judge C was aligned
with the Government.4 This infringement was exacerbated when
Judge C subsequently assigned himself to the Greatting case
after he had commented on Greatting’s potential culpability.
The Supreme Court recognized in Liljeberg that we “must
continuously bear in mind that to perform its high function in
the best way justice must satisfy the appearance of justice.”
486 U.S. at 864 (citation and quotation marks omitted). The
conduct of Judge C in this case has created the risk of
4
There is a significant difference between a military judge
conducting a post-trial critique of trial counsel’s performance
and a military judge critiquing the convening authority’s
actions in prior companion cases and commenting on the potential
culpability of a defendant in an upcoming case.
16
United States v. Greatting, No. 07-0575/MC
undermining the public’s confidence in the military justice
system. Under the Liljeberg factors, Greatting is entitled to
relief.
DECISION
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is reversed. The findings of guilty and
sentence are set aside. The record of trial is to be returned
to the Judge Advocate General of the Navy and a rehearing is
authorized.
17
United States v. Greatting, No. 07-0575/MC
STUCKY, Judge (dissenting):
The majority finds prejudicial error in the military
judge’s private conversation with the staff judge advocate (SJA)
about four already-completed cases and sets aside the findings
and sentence pursuant to the multi-factor analysis of Liljeberg
v. Health Services Acquisition Corp., 486 U.S. 847, 864 (1988).
Because I would find no error or, alternatively, find any
assumed error not prejudicial under Liljeberg, I respectfully
dissent.1
The conversation between the military judge and the
convening authority’s SJA neither concerned Appellant’s case nor
gave any indication of a lack of impartiality by the military
judge. The military judge admitted talking “with the staff
judge advocate and probably his deputy[,] not about
[Appellant’s] case other than that it was coming . . . but about
the other cases.” In particular, he told the SJA that
With respect to Cadriel, it was that I thought
they sold the case too low given his culpability, his
admissions in the Court, given the severity of his
conduct, and the repercussions of his conduct on the
junior Marines that were involved in the section, the
security of this installation.
. . . .
1
Trial defense counsel requested recusal based on the military
judge’s “extensive exposure to the related cases and the nature
of that exposure.” As the majority correctly notes, however,
presiding over companion cases does not, without more,
constitute grounds for recusal. United States v. Lewis, 6 M.J.
43, 45 (C.M.A. 1978).
United States v. Greatting, No. 07-0575/MC
. . . [F]ollowing my adjourning the Court, the
defense counsel and the accused were high-fiving in
the back of the courtroom and I felt that very
inappropriate, unprofessional, and displayed a lack of
remorse I thought on behalf of the accused in that
particular case, and that was the Cadriel case.
I think I also mentioned following the other
. . . three cases . . . , that I felt given the level
of culpability of Cadriel versus the younger Marines
who were perhaps more guided or motivated by misguided
loyalty to the other two staff NCO’s that they worked
for, I questioned the appropriateness of their being
at a special court-martial.
The military judge also assured trial defense counsel that he
could decide Appellant’s case fairly, based on the facts
presented at Appellant’s court-martial alone.
These statements fall into two categories, neither of which
has the effect or gives the appearance of granting an undue
advantage to one party in Appellant’s court-martial. United
States v. Quintanilla, 56 M.J. 37, 79 (C.A.A.F. 2001). First,
the military judge’s critique of trial defense counsel’s
inappropriate conduct can hardly be considered error, let alone
illustrative of prejudice. Indeed, a military judge has a duty
under the Rules of Professional Conduct to advise an SJA of the
unprofessional conduct of junior attorneys. See Dep’t of the
Navy, Judge Advocate General Instr. 5803.1C, Professional
Conduct of Attorneys Practicing Under the Cognizance and
Supervision of the Judge Advocate General, Enclosure (1): Rules
of Professional Conduct Rule 8.3 (Nov. 9, 2004). Second, to
2
United States v. Greatting, No. 07-0575/MC
suggest that the military judge’s comments about Staff Sergeant
(SSgt) Cadriel’s relatively low sentence evidenced a bias toward
a harsh sentence in Appellant’s case ignores civilian defense
counsel’s concession that no actual bias existed in this case
and assumes a perverse willingness on the part of the military
judge to use Appellant’s court-martial to avenge a perceived
failing in SSgt Cadriel’s case.
I am aware of no case law supporting the proposition that
a private conversation such as the one in this case constitutes
grounds for recusal. In re Boston’s Children First, 244 F.3d
164 (1st Cir. 2001), and United States v. Cooley, 1 F.3d 985
(10th Cir. 1993), cited by Appellant, are inapposite. Both
cases involved judges who commented on pending cases through the
national media. Children First, 244 F.3d at 166 (letter to the
editor of the Boston Herald); Cooley, 1 F.3d at 990 (television
interviews, including one with Barbara Walters). The military
judge in this case spoke to the convening authority’s SJA in
private and restricted his comments to matters no longer before
him. Before today, such actions were not, to my knowledge, even
considered inappropriate, let alone grounds for recusal.2
2
I do not question that it might have been better practice for
the military judge to have limited his comments to the arguably
improper behavior of counsel, and kept his comments regarding
sentencing in other cases to himself. However, the question
before us is whether recusal was required, and I cannot find it
was on these facts.
3
United States v. Greatting, No. 07-0575/MC
Even assuming arguendo that the military judge abused his
discretion by not recusing himself, I would decline to reverse
for want of prejudice. While the majority correctly notes that
Liljeberg requires us to assess (1) the risk of injustice to the
parties in the particular case, (2) the risk that denial of
relief will produce injustice in other cases, and (3) the risk
of undermining the public’s confidence in the judiciary, I do
not find the majority’s analysis persuasive. Liljeberg, 486
U.S. at 864.
The risk of injustice to Appellant is minimal. Appellant,
after all, pled guilty, and providently so, and the military
judge handed down a sentence with confinement of less than half
the limitation in Appellant’s pretrial agreement (PTA). The
majority concedes that the disparity between the confinement cap
in Appellant’s case and those in the companion cases may have
resulted, in part, from the fact that Appellant was the last to
enter a PTA. Together with its failure to provide any evidence
that the military judge’s conversations with the SJA influenced
the convening authority’s decision to agree to the terms of
Appellant’s PTA, these facts make the majority’s conclusion that
Appellant faced a significant risk of injustice highly dubious.
Furthermore, not reversing this case will not produce
injustice in other cases. This Court clearly stated in United
States v. Butcher, 56 M.J. 87 (C.A.A.F. 2001), that “[i]t is not
4
United States v. Greatting, No. 07-0575/MC
necessary to reverse the results of the present trial in order
to ensure that military judges exercise the appropriate degree
of discretion in the future.” Id. at 93. This prong
essentially asks us to consider whether a lack of reversal would
encourage similar conduct in the future. The facts of this case
are so distinct and innocuous –- private conversations about
already-completed trials –- that I very much doubt that they
could encourage any pattern of undesirable behavior.
Finally, the public’s confidence in the military justice
system will likely not be undermined by the military judge’s
conduct in this case. Given the guilty plea and the lenient
sentence, no reasonable person could view the entire facts of
this case and see bias and, as such, no reasonable person could
see this case as a taint on the image of the military judiciary.
Therefore, since I would find no error, and any assumed
error does not warrant relief under the applicable standard, I
respectfully dissent.
5
United States v. Greatting
Court: Court of Appeals for the Armed Forces
Date filed: 2008-05-06
Citations: 66 M.J. 226
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