      This opinion is subject to revision before publication


        UNITED STATES COURT OF APPEALS
                 FOR THE    ARMED FORCES
                        _______________

                      UNITED STATES
                          Appellee
                               v.
             Andrew P. WITT, Senior Airman
              United States Air Force, Appellant
                         No. 15-0260
                     Crim. App. No. 36785
         Argued April 26, 2016—Decided July 19, 2016
              Military Judge: W. Thomas Cumbie
   For Appellant: Brian L. Mizer, Esq. (argued); Major Daniel
   E. Schoeni and Major Thomas A. Smith (on brief).
   For Appellee: Gerald R. Bruce, Esq. (argued); Colonel Mar-
   tin J. Hindel, Colonel Katherine E. Oler, Lieutenant Colo-
   nel Nurit Anderson, Lieutenant Colonel Roberto Ramirez,
   Major Matthew J. Neil, and Major Gary M. Osborn (on
   brief).
   Judge STUCKY delivered the opinion of the Court, in
   which Chief Judge ERDMANN, Judges RYAN and
   OHLSON, and Senior Judge COX, joined.
                    _______________

   Judge STUCKY delivered the opinion of the Court.

   Sitting en banc, the United States Air Force Court of
Criminal Appeals (CCA) set aside Appellant’s death sen-
tence. At the Government’s request, the CCA reconsidered,
again sitting en banc, and affirmed the death sentence. The
case is before us for mandatory review pursuant to Article
67(a)(1), Uniform Code of Military Justice (UCMJ),
10 U.S.C. § 867(a)(1) (2012).
    As a preliminary matter, we specified two issues:
(1) whether the CCA, sitting en banc, had authority to re-
consider a previous en banc decision; and, (2) whether it
could do so when the composition of the en banc court had
changed. We hold that the CCA had authority to reconsider
its previous en banc decision, even though the composition of
the court changed, but that any judge present for duty at the
time the first opinion issued who did not participate in that
         United States v. Witt, No. Docket No. 15-0260/AF
                       Opinion of the Court

decision was disqualified from later participation in the
case.
                      I. Procedural History
    A general court-martial convicted Appellant of the at-
tempted premeditated murder of Senior Airman (SrA) Jason
King and the premeditated murders of SrA Andrew
Schliepsiek and his wife Jamie Schliepsiek. Articles 80 and
118, Uniform Code Military Justice (UCMJ), 10 U.S.C.
§§ 880, 918 (2012). On October 13, 2005, the court sentenced
Appellant to death. The convening authority approved the
findings and sentence as adjudged.
    The CCA, sitting en banc,1 affirmed the findings but set
aside the sentence and ordered a rehearing, holding Appel-
lant’s defense counsel constitutionally ineffective for failing
to investigate certain mitigating evidence. United States v.
Witt (Witt I), 72 M.J. 727, 758–66 (A.F. Ct. Crim. App. 2013)
(en banc). The Government moved for reconsideration and
reconsideration en banc, which was granted. United States
v. Witt (Witt II), 73 M.J. 738, 753 (A.F. Ct. Crim. App. 2014)
(recon) (en banc). On reconsideration, the CCA held that the
trial defense counsel’s defective performance did not result
in prejudice and affirmed the approved findings and sen-
tence. Id. at 825.
   II. En Banc CCA May Reconsider Its En Banc Decision

    Appellant argues that Article 66(a) and precedent from
this Court prohibit a CCA from reconsidering an en banc
opinion. They do not.
   As originally enacted, Article 66(a), UCMJ, provided that
“the Judge Advocate General of each of the armed forces
shall constitute in his office one or more boards of review,
each composed of not less than three officers or civilians.”
Act of May 5, 1950, ch. 169, Pub. L. No. 81-506, 64 Stat. 107,
128 (Article 66(a)). The Judge Advocates General were re-
quired to “prescribe uniform rules of procedure for proceed-
ings in and before the boards of review.” 64 Stat. at 129.


   1  The Government argued that this first sitting was not en
banc. We reject this contention. The record clearly indicates that it
was.




                                 2
        United States v. Witt, No. Docket No. 15-0260/AF
                      Opinion of the Court

    The Court of Military Appeals (CMA) noted that “The
boards of review were separate and relatively autonomous;
they were not constituents of a larger consolidated entity.”
United States v. Chilcote, 20 C.M.A. 283, 285, 43 C.M.R. 123,
125 (1971). Each board of review had the inherent authority
to reconsider its own opinion. See United States v. Hender-
son, 52 M.J. 14, 20 (C.A.A.F. 1999) (citing United States v.
Sparks, 5 C.M.A. 453, 18 C.M.R. 77 (1955); United States v.
Corbin, 3 C.M.A. 99, 11 C.M.R. 99 (1953); United States v.
Reeves, 1 C.M.A. 388, 3 C.M.R. 122 (1952)).
    As part of the Military Justice Act of 1968, Congress
amended Article 66(a) to replace the “one or more boards of
review” with one court that could sit in panels or en banc “in
accordance with the [uniform] rules [of procedure] pre-
scribed” by the Judge Advocates General.2 Pub. L. No. 90-
632, 82 Stat. 1335, 1341 (1965); see Article 66(f), UCMJ. De-
spite this amendment, the CMA held that Article 66 did not
permit en banc reconsideration of a panel decision and the
uniform rules were “not an independent grant of substance
that would broaden the authority contained in Article 66(a).”
Chilcote, 20 C.M.A. at 286, 43 C.M.R. at 126.
    Article 66(a) was amended again by the Military Justice
Act of 1983, Pub. L. No. 98-209, 97 Stat. 1393 (1983), “to
specifically overrule the Chilcote decision.” Henderson, 52
M.J. at 20; see United States v. Flowers, 26 M.J. 463, 464
(C.M.A. 1988). The amendment provided for reconsideration
of a panel decision by the court sitting as a whole. Hender-
son, 52 M.J. at 20.
    In Henderson, the question before this Court was wheth-
er, in light of the 1983 amendment, a panel could reconsider
its own opinion or reconsideration was limited to the court
sitting as a whole. 52 M.J. at 19. We held that a panel was
still authorized to reconsider its own decision. Id. at 20. Cit-
ing the uniform rules of the Judge Advocates General, we
noted: “Reconsideration of a decision by a Court of Criminal
Appeals is provided for without regard to whether it is sit-
ting as a panel or as a whole.” Id. (citing CCAs R. 4, 17, 19).


   2  Now known as the Courts of Criminal Appeals Rules of Prac-
tice and Procedure (CCAs R.).




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        United States v. Witt, No. Docket No. 15-0260/AF
                      Opinion of the Court

    Appellant correctly argues that the CCAs are courts of
limited jurisdiction, that neither the plain language of Arti-
cle 66 nor its legislative history provides for en banc recon-
sideration of an en banc opinion, and that the uniform rules
prescribed by the JAGs cannot confer jurisdiction on the
CCAs. However, these arguments miss the point.
    As we have held continuously since the UCMJ was en-
acted, military appellate courts have the inherent authority
to reconsider their own decisions. See id.; United States v.
Kraffa, 11 M.J. 453, 455 (C.M.A. 1981) (at least “until the
possibility of reconsideration is removed”); United States v.
Jackson, 2 C.M.A. 179, 182, 7 C.M.R. 55, 58 (1953) (stating
that this Court wishes “to avoid a position which might op-
erate to deprive a military service of full opportunity to cor-
rect the errors of its own tribunals”); Reeves, 1 C.M.A. at
390–91, 3 C.M.R. at 124–25 (stating that the boards of re-
view “should have the right to correct clerical errors, inad-
vertently entered decisions, and those decisions which are
clearly wrong as a matter of law”). The CCAs Rules are not
the basis for this conclusion, although they are consistent
with it. Henderson, 52 M.J. at 19 (stating that the uniform
rules prescribed by the Judge Advocates General pursuant
to Article 66(f) provided for reconsideration “without regard
to whether [the CCA] is sitting as a panel or as a whole”); see
CCAs R. 17(c), 19(b).
   We hold, therefore, that the CCA sitting en banc had the
authority to reconsider its own decision, consistent with
CCAs R. 19.
 III. The Reconsidering Court Was Improperly Composed

                        A. Background
    The CCA first heard oral argument in this case on Octo-
ber 11, 2012. Witt I was issued ten months later, on August
9, 2013. Four judges, present for duty on that date, declined
to participate in Witt I because of their arrival at the CCA
well after oral argument and conference but shortly before
the opinion issued. Three of those judges, however, subse-
quently participated in Witt II.3

   3  Four other judges then present recused themselves because
of prior involvement with the case. They did not further partici-



                               4
          United States v. Witt, No. Docket No. 15-0260/AF
                        Opinion of the Court

                              B. Discussion
    The Code of Conduct for United States Judges (CCUSJ)
provides: “A judge should hear and decide matters assigned,
unless disqualified ….”4 Canon 3(A)(2). Although by its own
terms, the CCUSJ does not apply to this Court or the CCAs,5
we have adopted it. United States v. Butcher, 56 M.J. 87, 91
(C.A.A.F. 2001); United States v. Quintanilla, 56 M.J. 37, 44
(C.A.A.F. 2001). The Air Force, however, has not. Instead, it
adopted a modified version of the American Bar Associa-
tion’s 1990 Model Code of Judicial Conduct: The Air Force
Uniform Code of Judicial Conduct (AFUCJC). Dep’t of the
Air Force, Inst. 51-201, Law, Administration of Military Jus-
tice, Attachment 5, pt. I (June 6, 2013) [hereinafter AFI 51-
201]; see Butcher, 56 M.J. at 91 (recognizing the applicability
of the AFUCJC to Air Force judges).
    An Air Force appellate military judge “shall hear and de-
cide matters assigned to the judge, except those in which
disqualification is required.” AFI 51-201, AFUCJC R. 3B(1).
The CCA has not addressed the meaning of AFUCJC R.
3B(1). Nevertheless, the ABA’s comment on the Model Rule6
that was the basis for AFUCJC R. 3B(1) is consistent with
both the CCUSJ and the Supreme Court’s view of the duties
of a judge: Although a judge has a duty not to sit when dis-
qualified, the judge has an equal duty to sit on a case when
not disqualified. Laird v. Tatum, 409 U.S. 824, 837 (1972). A
judge who is present for duty does not have the discretion to
not participate in an assigned case, absent exceptional cir-
cumstances not present here.



pate in the case and are not included in the subsequent discus-
sion.
   4 See http://www.uscourts.gov/judges-judgeships/code-conduct-
united-states-judges (last visited July 12, 2016).
   5   Id. at Introduction.
   6  Arthur H. Garwin et al., Annotated Model Code of Judicial
Conduct 142–44 (2d ed. 2011). The Model Code was revised and
reorganized in 2007. The duty to sit now appears in Model Rule
2.7: “A judge shall hear and decide matters assigned to the judge,
except when disqualification is required by Rule 2.11 or other
law.” Id. at 142.




                                   5
        United States v. Witt, No. Docket No. 15-0260/AF
                      Opinion of the Court

    Chief Judge Everett’s opinion in United States v.
Fimmano, is instructive. 9 M.J. 256 (C.M.A. 1980) (Everett,
C.J., memorandum opinion). In that and several other cases,
Chief Judge Everett declined to sit on certain petitions for
reconsideration which were pending when he joined the
Court. This Court’s rule on reconsideration at the time was
totally silent on who could vote on a petition, or whose as-
sent was necessary. See C.MA. R. 29, 4 M.J. cxvi (1977).
Chief Judge Everett stated, in words of particular relevance
to the CCAs, that:
       [T]he contention has been voiced that to allow re-
       versal of a decision by the vote of succession judges
       after a petition for rehearing has been submitted
       would injure public confidence in appellate tribu-
       nals. Of course, this danger would be heightened if
       … the judges had no fixed tenure on an appellate
       tribunal, so that the power to … appoint new judges
       would carry with it the power to change the results
       of specific cases.
Fimmano, 9 M.J. at 258 (emphasis added) (citation omit-
ted).7
   Such a problem of appearances and public confidence is
precisely what we have here. CCA R. 17(b) clearly compre-
hends that all judges not recused will participate in any vote
on en banc consideration: “The suggestion of a party for con-
sideration or reconsideration by the Court as a whole shall
be transmitted to each judge of the Court who is present for
duty ….” Several judges present for duty declined to sit for
the initial en banc consideration yet sat for reconsideration
en banc and reversed the original result.8 The Government

   7   Judge Effron’s opinion in United States v. Gorski, 48 M.J.
317 (C.A.A.F. 1997) (Effron, J., memorandum opinion), is wholly
distinguishable. In that case, because of an unguarded remark
made from the bench during oral argument by another judge,
Judge Effron was faced with a motion to recuse himself. While the
motion had no substantive merit, Judge Effron felt that his impar-
tiality might be questioned and therefore recused himself anyway.
This is clearly much closer to the situation of the judges in the
present case who recused themselves because of some prior in-
volvement.
   8 One of the judges who declined to participate in the original
en banc decision was appointed to serve as chief judge for the re-



                                6
          United States v. Witt, No. Docket No. 15-0260/AF
                        Opinion of the Court

then opposed the defense’s motion to disclose the votes on
the motion to reconsider and the motion was denied.9 Par-
ticularly in the unique context of capital litigation, this is
exceedingly problematic.
    The refusal of a judge who is present for duty and not
disqualified to participate amounts to disqualification. Once
disqualified, the judge is prohibited from further participa-
tion in the case.10 See United States v. Roach, 69 M.J. 17, 20
(C.A.A.F. 2010); see also United States v. Thornton, 69 M.J.
178, 178 (C.A.A.F. 2010) (summary disposition); Walker v.
United States, 60 M.J. 354, 358 (C.A.A.F. 2004); Richard E.
Flamm, Judicial Disqualification: Recusal and Disqualifica-
tion of Judges § 22.1 (2d ed. 2007).
   In Appellant’s case, three judges who were present for
duty at the time Witt I issued but did not participate may
have participated in the vote to reconsider11 and did partici-
pate in Witt II. We hold that the failure of these judges to
participate in Witt I amounted to de facto disqualification
and, that they were therefore prohibited from further partic-
ipation in the case.



consideration and appears to have participated in the vote to re-
consider.
   9  Appellant moved the CCA to disclose the judges who partici-
pated in the vote to reconsider and the votes of the individual
judges. The Government opposed on the grounds that, in the ab-
sence of evidence to the contrary, the judges of the CCA are pre-
sumed to know and follow the law and disclosure of the votes
would pierce the veil of the CCA’s deliberative process. We disa-
gree. How a judge votes on a motion to reconsider is not part of the
deliberative process and is subject to discovery.
   10  We are aware that in a recent case, a justice of the Supreme
Court recused himself and then returned to participation in the
case. See American Broadcasting Companies, Inc. v. Aereo,
Inc., No. 13-461 (Apr. 16, 2014) (docket entry noting justice
was no longer recused), http://www.supremecourt.gov/search.aspx?
filename=/docketfiles/13-461.htm. The case cited is clearly a civil
one, where a simple stock holding or other investment could give
rise to recusal until it is divested. See 28 U.S.C. § 455(f) (2012).
That is not the case here.
   11   See supra note 10.




                                 7
            United States v. Witt, No. Docket No. 15-0260/AF
                          Opinion of the Court

    Having found error in the participation of three judges in
Witt II, we must determine whether the error prejudiced
Appellant’s substantial rights. Article 59(a), UCMJ,
10 U.S.C. § 859(a) (2012). In Liljeberg v. Health Services Ac-
quisition Corp., the Supreme Court held that violations of
28 U.S.C. § 455(a), which concerns the disqualification of
“[a]ny justice, judge, or magistrate judge of the United
States,” could be evaluated for harmlessness by examining
three factors: “the risk of injustice to the parties in the par-
ticular 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.” 486 U.S. 847,
862, 864 (1988).
   Although CCA judges are not “judges of the United
States,” we have applied the Liljeberg factors in evaluating
the participation of recused judges in the military justice
system.12 See Roach, 69 M.J. at 20–21. In Roach, we found
the third Liljeberg factor determinative:
           First, public confidence in the military judicial pro-
           cess is undermined where judges act in cases from
           which they are recused. This is true, whether the
           judge’s role is significant or minimal.… [A] military
           judge is recused or he is not. A military judge who
           acts inconsistently with a recusal, no matter how
           minimally, may leave a wider audience to wonder
           whether the military judge lacks the same rigor
           when applying the law.
Id.
    Consistent with this precedent, we hold that the partici-
pation of disqualified judges in the reconsideration process
produced a significant “risk of undermining the public’s con-
fidence in the judicial process,” Liljeberg, 48 U.S. at 864, and
thus prejudiced Appellant’s substantial rights. Article 59(a),
UCMJ. Furthermore, while we are not constructing a rule
solely for capital litigation, we do note that the error in this
case resulted in Appellant’s vacated death sentence being

      12
       The terms “disqualification” and “recusal” are closely relat-
ed. Whereas disqualification refers to the basis for a judge not to
be able to sit on a case, “recusal” refers to the judge’s refusing to
sit on grounds of disqualification. Compare Black’s Law Dictionary
573 (10th ed. 2014), with id. at 1467.




                                     8
        United States v. Witt, No. Docket No. 15-0260/AF
                      Opinion of the Court

affirmed. It is difficult to conceive of a more striking exam-
ple of prejudice to an appellant’s substantial rights.
                        IV. Judgment
    The judgment of the United States Air Force Court of
Criminal Appeals in Witt II is vacated. The case is returned
to the Judge Advocate General of the Air Force for remand
to an appropriate convening authority for a sentence rehear-
ing in accordance with Witt I.




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