Published semi-annually by the Office of the Judge Advocate General of the Navy as a professional legal forum for the Navy judge advocate, the Journal encourages frank discussion of relevant legislative, administrative, and judicial developments in military and related law fields. Views expressed in published articles must be considered the view of the individual author and do not purport to promulgate or voice the views of the Judge Advocate General, the Department of the Navy, or any other Agency or Department of the United States. Submissions shall be submitted to the Editor, JAG Journal. The Journal will return unpublished manuscripts if so requested; but responsibility for safe return cannot be assumed. No compensation can be paid for articles published. Prospective authors are urged to discuss proposed article ideas with the editor. Cite this Journal as 29 JAG J. [page number] (1977). Issuance of this periodical approved in accordance with Department of the Navy Publications and Printing Regulations, NAVEXOS P35. Rear Admiral William O. Miller, JAGC, USN Rear Admiral Charles E. McDowell, JAGC, USN Lieutenant Commander W. D. Cohen, JAGC, USN For sale by the Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402. Stock No. 008-044-00031-7 Justice And The Judiciary: A Look At The Partial Jurist Major David A. Higley, USMC* The judiciary, more than any other component of the jurisprudential equation, has the paramount responsibility to be impartial. Recently, numerous criminal convictions have been set aside during the course of appellate review because the presiding trial jurist abandoned his impartial role and became a partisan advocate. The author examines a significant number of military and federal civilian criminal cases where reversal of a conviction has resulted from judicial impropriety, extrapolates from these cases appellate court advice on the subject of judicial temperament, and applies this information to Manual for Courts-Martial and ABA Standards on the subject of judicial demeanor. Justice must satisfy the appearance of justice. Mr. Justice Hugo L. Black1 ALL TOO OFTEN recently, military appellate tribunals have been called upon to decide whether a military judge had abandoned his impartial role and become a partisan advocate for the prosecution. In the past five years, no less than 10 written opinions on this subject have been issued by either the United States Court of Military Appeals, or the Courts of Military Review. Of these 10 cases, 80%-fully 8 out of 10— *Major Higley currently is serving in the Appellate Government Division, Navy Appellate Review Activity, Office of the Judge Advocate General of the Navy. He received the B.S. degree at the State University of New York at Buffalo in 1963, and J.D. (Cum Laude) from the same University in 1971. He is a member of the bars of New York, District of Columbia, and Florida, the Supreme Court of the United States and the United States Court of Military Appeals. 1. In Re Murchison, 349 U.S. 133, 136 (1955). 2. United States v. Shackelford, 25 USCMA 13, 54 CMR 13 (1976) (interim); United States v. Holmes, 23 USCMA 497, 50 CMR 577 (1975); United States v. Kimble, 23 USCMA 251, 49 CMR 384 (1974); United States v. Clower, 23 USCMA 15, 48 CMR 307 (1974); United States v. Posey, 21 USCMA 188, 44 CMR 242 (1972); United States v. Bush, No. 76 1229 (NCMR 16 August 1976) (unpublished); United States v. Massa, 49 CMR 586 (ACMR 1974); United States v. Beach, 49 CMR 124 (NCMR 1974); United States v. Taylor, 47 CMR 445 (ACMR 1973); United States v. Jordan, 45 CMR 719 (ACMR 1972). resulted in reversal of the accused's conviction.3 To indicate that such a reversal rate is unacceptable is merely to state the obvious. Moreover, of these 10 cases, only 1 concerned the review of a conviction by special court-martial;4 fully 87.5% of the reversals were of general courts. In terms of age, maturity, and experience, one would have expected fewer reversals for improper judicial conduct or temperament by general courtmartial military judges, but such is simply not the case. The penchant for partiality, however, is not restricted to trials by courts-martial. Federal civilian appellate tribunals have also had more than their share of cases where the spectre of partiality has been injected into a criminal trial. Here, too, the reversal rate is appalling. This article examines into this serious legal problem, and after a systematic collation of opinions on various aspects of the subject, the judicial pitfalls will be isolated and discussed. It is first necessary to identify the role of impartiality required of a judge in a criminal trial, and subsequent portions of this article will discuss, in some depth, various military and federal civilian appellate court opinions which have held that a trial jurist abandoned his impartial role. The reader is cautioned that the discussion of the subject presented herein is not exhaustive. Since the paper is focused on the partial jurist, the principal opinions discussed are those where reversal resulted because of partiality. Obviously, therefore, the picture is incomplete. Nevertheless, it is believed that a study of those cases resulting in reversal on appeal will provide a sufficient background against which the individual facets of the general theme can be identified and set forth for discussion and consideration.5 I THE REQUIREMENT OF IMPARTIALITY It can be stated without equivocation that a military judge must not only be impartial; he must provide the very appearance of impartiality. 3. Of the remaining two, Kimble and Beach, supra n. 2, the latter case was subsequently reversed for denial of speedy trial. United States v. Beach, 23 USCMA 480, 50 CMR 560 (1975). Moreover, in view of the decision in Shackelford, supra n. 2, the continuing viability of that portion of the Navy Court's opinion on the present subject must be viewed with extreme caution. See infra n. 72. 4. United States v. Bush, supra n. 2. 5. The reader should note that this material is being written primarily for military judges and counsel practicing before courts-martial. Accordingly, while the article has a definite slant toward military law, terminology and procedure, such direction is not without purpose. |