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Appellant will get a rehearing because the military judge was disqualified.

On 28 June 2016, the Army Court of Criminal Appeals (ACCA) in United States v. Schaeffer held that a military judge was disqualified from serving as the judge in a court-martial and that he should have recused himself.  ACCA therefore reversed the appellant’s conviction and authorized a rehearing. This holding was not because the military judge was biased against the accused, but instead was based on the fact that the military judge had served as the Chief of Military Justice when the appellant’s case was being investigated and charged.  The Chief of Military Justice is essentially the boss of the prosecutors in the military.  In this specific case, when the military judge was serving as the Chief of Military Justice, he had a role in the appellant’s case being preferred and referred to a court-martial.  Upon serving as the military judge, the accused was made aware of his prior role in the case going forward, however the accused chose to have him be the military judge in his court-martial regardless.  On appeal, however, ACCA found that the military judge simply was too “actively involved” in the appellant’s court-martial while serving as the Chief of Military Justice.  ACCA held that despite the appellant being informed, he could not waive the issue because the military judge was disqualified under R.C.M. 902(b) and should have recused himself.  This same problem arose in a later case involving the same military judge, but this time ACCA held that he was not disqualified from serving as the military judge in the court-martial.  In United States v. Flores-Santos, the same issue was raised by appellant against the same military judge.  However, the facts were a bit different this time.  In this case, the military judge had stopped serving as the Chief of Military Justice by the time the appellant’s investigation was complete and the case was moved forward to a court-martial.  Therefore, the military judge had no involvement in the case at all.  Therefore in United States v. Flores-Santos, ACCA found that the judge was not disqualified and not required to recuse himself.  These cases show that sometimes you may have a valid appellate issue even if your case seemed to proceed smoothly.  The appellant in Schaeffer had his conviction overturned simply based on the military judge’s prior position.  You will not know if you have a valid appellate issue until you speak with someone who has the experience to know what to look for.  I have that experience.  Call today and we will talk through your case.   To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.

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