Wilson v. Ouelette

34 M.J. 798, 1991 CMR LEXIS 1482, 1991 WL 317044
CourtU.S. Navy-Marine Corps Court of Military Review
DecidedDecember 9, 1991
DocketNMCM No. 913025 M
StatusPublished
Cited by12 cases

This text of 34 M.J. 798 (Wilson v. Ouelette) is published on Counsel Stack Legal Research, covering U.S. Navy-Marine Corps Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wilson v. Ouelette, 34 M.J. 798, 1991 CMR LEXIS 1482, 1991 WL 317044 (usnmcmilrev 1991).

Opinion

MOLLISON, Judge:

The petitioner moves this Court under the All Writs Act, 28 U.S.C. § 1651(a), to issue a writ of mandamus directing the respondent to permit the petitioner to introduce evidence in support of a challenge for cause against the respondent or, in the alternative, to disqualify himself from petitioner’s court-martial. More particularly, petitioner seeks to call as witnesses a former military judge (Lieutenant Colonel Stevens) and a sitting junior military judge (Major Anderson) within the respondent’s circuit. The petitioner also seeks a stay in the trial proceedings pending a determination of the matter.1

“The writ of mandamus is a drastic instrument which should be invoked only in truly extraordinary situations.” United States v. LaBella, 15 M.J. 228, 229 (C.M.A.1983). In special circumstances mandamus is available to review a trial judge’s ruling on disqualification. See United States v. Gregory, 656 F.2d 1132, 1136 (5th Cir. Unit B 1981); Annot., 56 A.L.R.Fed. 494 (1982). The accused has the burden of demonstrating his right to mandamus is clear and undisputable. United States v. Thomas, 33 M.J. 768 (N.M.C.M.R.1991). The question before us, therefore, is whether the petitioner has clearly and indisputably demonstrated that this situation is truly extraordinary and that he is entitled to this drastic remedy.

A military judge must disqualify himself from presiding at a court-martial if either “general” or “specific” grounds for disqualification exist. Rule for Courts-Martial (R.C.M.) 902, Manual for Courts-Martial, United States, 1984. As to the general ground for disqualification, a military judge must disqualify himself in any proceeding in which that military judge’s impartiality might reasonably be questioned. R.C.M. 902(a).

“A judge is presumed to be qualified and so the burden placed upon the party seeking disqualification is substantial in proving otherwise.” United States v. Allen, 31 M.J. 572, 601 (N.M.C.M.R.1990), affirmed 33 M.J. 209 (C.M.A.1991). Claims of partiality must have a factual basis. The moving party has the burden of establishing a reasonable factual basis for disqualification. More than mere surmise or conjecture is required. Id. at 605. The parties are permitted to question the military judge and present evidence regarding a possible ground for disqualification before the military judge decides the matter. R.C.M. 902(d)(2). The moving party can shoulder its burden of proving disqualification, for example, by filing affidavits, offering documentary evidence, entering into stipulations of fact or expected testimony, or calling witnesses, to establish the facts and reasons in support of its challenge for cause.2 Id. at 607. The military judge’s ruling on a challenge for cause is reviewable on appeal for abuse of discretion. United States v. Elzy, 25 M.J. 416, 417 (C.M.A.1988).

The test for disqualification is not actual partiality but the existence of a reasonable question about impartiality. United States v. Murphy, 768 F.2d 1518, 1537 (7th Cir.1985), cert. denied, 475 U.S. 1012, 106 S.Ct. 1188, 89 L.Ed.2d 304 (1986).3 The [800]*800test for the appearance of partiality is “whether an objective, disinterested observer fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt that justice would be done in the case.” Pepsico, Inc. v. McMillen, 764 F.2d 458, 460 (7th Cir.1985); Allen, 31 M.J. at 601, 604, 605.

Personal, not judicial, bias is a proper basis for disqualification. Allen, 31 M.J. at 607; United States v. Thompson, 483 F.2d 527 (3d Cir.1973); Annot., 40 A.L.R.Fed. 954 (1978). “[It] must stem from personal, extrajudicial sources, although there is an exception where pervasive bias and prejudice is shown by otherwise judicial conduct.” Gregory, 656 F.2d at 1137 (judge’s intemperate remark when furnishing financial disclosure information to counsel not disqualifying). “A judge’s inappropriate comments in one case do not necessarily preclude his fairly presiding over other trials.” United States v. Roldan-Zapata, 916 F.2d 795, 802 (2d Cir. 1990) (judge’s disparaging remarks concerning Columbians in unrelated trial not disqualifying). Nor does the fact that a judge has strong feelings about a particular crime automatically disqualify him from sentencing those who commit that crime. United States v. Borrero-Isaza, 887 F.2d 1349, 1357 (9th Cir.1989) (trial judge’s consideration of defendant’s South American origin required remand for re-sentencing, but same judge could sit). Usually, the bias must focus on a particular party, however, when a judge’s remarks in a judicial context demonstrate a pervasive bias and prejudice, it may constitute bias against the party. United States v. Monaco, 852 F.2d 1143, 1147 (9th Cir.1988), cert. denied, 488 U.S. 1040, 109 S.Ct. 864, 102 L.Ed.2d 988 (1989) (in sentencing defendant judge’s expressions of enormity of crime and defendant’s failure to take responsibility not disqualifying); Hamm v. Members of the Board of Regents of the State of Florida, 708 F.2d 647, 651 (11th Cir.1983) (friction with counsel did not constitute pervasive bias); see also Davis v. Board of School Commissioners of Mobile County, 517 F.2d 1044, 1050-52 (5th Cir.1975), cert. denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188 (1976); In re Muller, 72 B.R. 280, 288 (C.D.Ill.1987), aff'd, 851 F.2d 916 (7th Cir.1988), reh’g and cert. denied, 490 U.S. 1007, 109 S.Ct. 1645, 104 L.Ed.2d 160 (1989). If bias is directed against a class, the accused is in the class, and the bias is of such a nature and intensity that it prevents the accused from obtaining a sentence uninfluenced by the judge’s prejudgment, the judge should disqualify himself. Thompson, 483 F.2d at 529 (judge’s policy stated in camera in an unrelated case that Selective Service Act violators would receive 30 months if they were good people was disqualifying). Additionally, a fixed view as to sentencing is inconsistent with the discretion vested in a trial judge to fulfill his mandate to tailor the sentence to the offense and the offender. Id. The scope of the voir dire of the military judge as to his disqualification on grounds of partiality is determined by the specific inquiry’s relevance to the military judge’s impartiality in the case before him.

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Bluebook (online)
34 M.J. 798, 1991 CMR LEXIS 1482, 1991 WL 317044, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilson-v-ouelette-usnmcmilrev-1991.