                                    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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United States v. Walker, No. 04-8025/MC



                                  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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United States v. Walker, No. 04-8025/MC


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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United States v. Walker, No. 04-8025/MC


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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United States v. Walker, No. 04-8025/MC


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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United States v. Walker, No. 04-8025/MC


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.


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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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United States v. Walker, No. 04-8025/MC


     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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United States v. Walker, No. 04-8025/MC


     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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United States v. Walker, No. 04-8025/MC


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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United States v. Walker, No. 04-8025/MC


     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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United States v. Walker, No. 04-8025/MC


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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United States v. Walker, No. 04-8025/MC


                            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.




                                  16
