                         UNITED STATES, Appellee

                                         v.

                    Kevin L. McILWAIN, Specialist
                         U.S. Army, Appellant

                                  No. 07-0544
                         Crim. App. No. 20040095

       United States Court of Appeals for the Armed Forces

                         Argued February 5, 2008

                           Decided May 21, 2008

STUCKY, J., delivered the opinion of the Court, in which EFFRON,
C.J., and ERDMANN, J., joined. RYAN, J., filed a dissenting
opinion, in which BAKER, J., joined. BAKER, J., also filed a
separate dissenting opinion.

                                     Counsel

For Appellant: Captain Shay Stanford (argued); Colonel
Christopher J. O’Brien, Lieutenant Colonel Steven C. Henricks,
and Major Teresa L. Raymond (on brief); Major Sean Mangan and
Captain Edward G. Bahdi.

For Appellee: Captain Nicole L. Fish (argued); Colonel John W.
Miller II, Major Elizabeth G. Marotta, and Captain Larry W.
Downend (on brief).


Military Judge:    Robin L. Hall

            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. McIlwain, No. 07-0544/AR


     Judge STUCKY delivered the opinion of the Court.

     We granted Appellant’s petition for review to determine if

the military judge abused her discretion by denying the defense

motion to recuse herself after declaring that her participation

in companion cases “would suggest to an impartial person looking

in that [she] can’t be impartial in this case” and refusing to

sit as trier of fact.   We hold that she abused her discretion,

and reverse.

                                I.

     Appellant was convicted of rape, forcible sodomy, and

indecent acts.   Articles 120, 125, and 134, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. §§ 920, 925, 934 (2000).

Court members sentenced him to a bad-conduct discharge,

confinement for fifty-four months, forfeiture of all pay and

allowances, and reduction to the lowest enlisted grade.

     Before asking for Appellant’s choice of forum, the military

judge disclosed that she had presided over the companion cases

of Specialist (SPC) Blow and Private (PVT) Williams.    PVT

Williams had pled guilty in a judge-alone trial, and SPC Blow

had entered mixed pleas.

     The military judge told Appellant that she would recuse

herself if asked to sit as a judge-alone court-martial, but

would not do so if Appellant elected members.   She stated that,

despite sitting on the companion cases, she had neither decided


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United States v. McIlwain, No. 07-0544/AR


any issue nor developed any opinions relating to Appellant’s

case.    However, during a brief voir dire, the military judge

explained that PVT Williams’s providence inquiry had implicated

Appellant because PVT Williams had pled to indecent assault “as

a principal” for Appellant’s act of pushing NG’s head down on

PVT Williams’s penis.    She admitted hearing more about Appellant

during SFC Blow’s trial earlier in the week.    Specifically, the

military judge told trial defense counsel the following:

           But I did hear a bunch about Specialist Williams
        [sic]1 at the trial Monday, Tuesday, and Wednesday of
        this week, so if your client desires to go with a
        judge alone, then I would not sit; I would recuse
        myself. If your client decides to go with a panel of
        either all officers or officers and enlisted members,
        then I’m comfortable that I will be able to
        objectively instruct the members, rule on objections,
        and that sort of thing, because my role is different.

        After the military judge disclosed that she would be

comfortable presiding over a members trial, Appellant elected to

be tried before officer and enlisted members.    Nevertheless, he

asked the military judge to recuse herself.    She denied the

recusal request and again told Appellant that if he chose a

judge-alone forum she would recuse herself because she had made

decisions favorable to Appellant in terms of assessing




1
  Both parties agree the military judge was talking about
Appellant.
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United States v. McIlwain, No. 07-0544/AR


witness credibility.   Those decisions “would suggest to an

impartial person looking in that I can’t be impartial in this

case.”

                                II.

     “An accused has a constitutional right to an impartial

judge.”   United States v. Wright, 52 M.J. 136, 140 (C.A.A.F.

1999) (citing Ward v. Village of Monroeville, 409 U.S. 57

(1972)); Tumey v. Ohio, 273 U.S. 510 (1927)).      Except where the

parties have waived disqualification of the military judge after

full disclosure of the basis for disqualification, a military

judge must recuse herself “in any proceeding in which that

military judge’s impartiality might reasonably be questioned.”

Rule for Courts-Martial (R.C.M.) 902(a).

     Whether the military judge should disqualify herself is

viewed objectively, and is “assessed not in the mind of the

military judge [her]self, but rather in the mind of a reasonable

man . . . who has knowledge of all the facts.”      Wright, 52 M.J.

at 141 (citation and quotation marks omitted).      Military judges

should “broadly construe” possible reasons for disqualification,

but also should not recuse themselves “unnecessarily.”      Id.;

R.C.M. 902(d)(1) Discussion.   On appellate review, this Court

will reverse a military judge’s decision on the issue of recusal

only for an abuse of discretion.       United States v. Butcher, 56

M.J. 87, 90 (C.A.A.F. 2001).


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United States v. McIlwain, No. 07-0544/AR


      It is well-settled in military law that the military judge

is more than a mere referee.   United States v. Wolford, 62 M.J.

418, 422 (C.A.A.F. 2006); United States v. Cooper, 51 M.J. 247,

253 (C.A.A.F. 1999) (Gierke, J., concurring in part and in the

result); United States v. Graves, 1 M.J. 50, 53 (C.M.A. 1975).

She is “the presiding authority in a court-martial and is

responsible for ensuring that a fair trial is conducted.”

United States v. Quintanilla, 56 M.J. 37, 41 (C.A.A.F. 2001)

(citing Article 26, UCMJ, 10 U.S.C. § 826 (2000); R.C.M. 801(a)

and Discussion, Manual for Courts-Martial, United States (2000

ed.)).   As this Court explained in Quintanilla:

      The judge has broad discretion in carrying out
      this responsibility, including the authority to
      call and question witnesses, hold sessions
      outside the presence of members, govern the order
      and manner of testimony and argument, control
      voir dire, rule on the admissibility of evidence
      and interlocutory questions, exercise contempt
      power to control the proceedings, and, in a bench
      trial, adjudge findings and sentence.

Id.   In these roles:

      The impartiality of a presiding judge is crucial,
      for “‘[t]he influence of the trial judge on the
      jury is necessarily and properly of great
      weight,’ . . . and jurors are ever watchful of
      the words that fall from him. Particularly in a
      criminal trial, the judge’s last word is apt to
      be the decisive word.”

Id. at 43 (quoting United States v. Shackelford, 2 M.J. 17, 19

(C.M.A. 1976)).




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United States v. McIlwain, No. 07-0544/AR


     We commend the military judge for her candor in fully

disclosing her participation in the companion cases and her

sensitivity to the public’s perceptions of the military justice

system.   That she sat on companion cases does not, without more,

mandate recusal.   United States v. Oakley, 33 M.J. 27, 34

(C.M.A. 1991) (holding no error military judge’s refusal to

recuse himself after sitting on two companion cases and making

decisions in those cases regarding suppression motions).

However, once the military judge performed the analysis required

by R.C.M. 902(a) and announced that her participation “would

suggest to an impartial person looking in that I can’t be

impartial in this case,” such a person would question her

impartiality.   Every time she ruled on evidence, asked

questions, responded to member questions, or determined

instructions, the military judge exercised her discretion, a

discretion that she admitted an impartial person would conclude

had not been exercised in an impartial manner.2   Therefore, she

was disqualified and abused her discretion by continuing to sit

on the case.    As we held in United States v. Sherrod, 26 M.J.

30, 33 (C.M.A. 1988), “[i]f a judge is disqualified to sit as

judge alone, [s]he is also disqualified to sit with members.”3


2
  This is not a case like Butcher, where the ground for
disqualification arose when the case was almost finished. 56
M.J. at 92.
3
  Having explicitly made the R.C.M. 902(a) determination in favor
of disqualification, the military judge also removed herself
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United States v. McIlwain, No. 07-0544/AR


                                  III.

        This Court has recognized that not every judicial

disqualification error requires reversal and has adopted the

standards the Supreme Court announced in Liljeberg v. Health

Services Acquisition Corp., 486 U.S. 847, 864 (1988), for

determining whether a judge’s disqualification under 28 U.S.C. §

455(a) (2000), warrants a remedy.        Butcher, 56 M.J. at 92.   The

three-part Liljeberg test looks at:

        (1)   the risk of injustice to the parties,
        (2)   the risk that the denial of relief will produce
              injustice in other cases, and
        (3)   the risk of undermining public confidence in the
              judicial process.

486 U.S. at 864; Butcher, 56 M.J. at 92-93; Quintanilla, 56 M.J.

at 80-81.     Applying these criteria, we find reversal is

warranted in this case.

        The risk of injustice to the parties is high when a

military judge who has stated her bias nonetheless presides over

a court-martial, even when she does not act as the trier of

fact.    As noted above, a military judge is charged with making a

number of decisions, any one of which could affect the members’


from the middle category of cases in Sherrod, where we stated we
would not ordinarily substitute our judgment for that of the
military judge. 26 M.J. at 33. Furthermore, although the
military judge’s disclosure follows the procedure outlined in
United States v. Campos, 42 M.J. 253, 262 (C.A.A.F. 1995), see
United States v. McIlwain, __ M.J. __ (2-3, 4) (C.A.A.F. 2008)
(Ryan, J., joined by Baker, J., dissenting), our review as to
whether R.C.M. 902(a) requires disqualification does not end


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United States v. McIlwain, No. 07-0544/AR


decision as to guilt or innocence, or with regard to the

sentence.    Quintanilla, 56 M.J. at 41.   Although the risk of

injustice in other cases if relief is denied is minimal, since

the military judge determined not to sit as trier of fact only

in Appellant’s trial, it is the third Liljeberg factor -- the

risk of undermining the public’s confidence in the judicial

system -- that is most affected by the military judge’s refusal

to recuse herself in this case.    Every time the military judge

made a decision, she exercised her discretion -- a discretion

which she herself had found was biased.    This could not but

produce a corrosive impact on public confidence in the military

justice system.    “‘The guiding consideration is that the

administration of justice should reasonably appear to be

disinterested as well as be so in fact.’”    Liljeberg, 486 U.S.

at 869-70 (quoting Public Utilities Commission of D.C. v.

Pollak, 343 U.S. 451, 466-67 (1952) (Frankfurter, J., in

chambers).

                                  IV.

        The decision of the United States Army Court of Criminal

Appeals is reversed.    The findings and sentence are set aside.

The record is returned to the Judge Advocate General of the

Army.    A rehearing may be ordered.



with the fact of the military judge’s disclosure. The substance
of the disclosure is also critical to our inquiry.
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United States v. McIlwain, No. 07-0544/AR


     RYAN, Judge, with whom BAKER, Judge, joins (dissenting):

     I do not understand how a military judge’s inartful comment

regarding her subjective belief concerning the thoughts others

might have about her presiding over a bench trial when she had

been the military judge in companion cases warrants reversal in

this case.    First, it has never been the law that hearing a

companion case alone is a basis for disqualification under Rule

for Courts-Martial (R.C.M.) 902(a).   See United States v.

Rivers, 49 M.J. 434, 444 (C.A.A.F. 1998) (rejecting a

disqualification claim where the military judge had disclosed

presiding over a companion case before the accused opted for a

trial by judge alone).   Yet, as Judge Baker’s separate dissent

points out, the majority effectively creates a per se rule

against military judges sitting on companion cases.   United

States v. McIlwain, __ M.J. at __ (1-2) (C.A.A.F. 2008) (Baker,

J., dissenting).    At the same time, the majority acknowledges

that this is not the law.   United States v. McIlwain, __ M.J. __

(6) (C.A.A.F. 2008).   Second, and relatedly, the test for

disqualification under R.C.M. 902(a) is objective, not

subjective.   United States v. Norfleet, 53 M.J. 262, 270

(C.A.A.F. 2000).    Objectively, there was no basis for

disqualification.   Third, under well-settled case law from this

Court, because the military judge was transparent and disclosed

that she had heard two companion cases, it was trial defense
United States v. McIlwain, No. 07-0544/AR


counsel’s responsibility to “present evidence regarding a

possible ground for disqualification.”   R.C.M. 902(d)(2); see

also United States v. Kincheloe, 14 M.J. 40, 50 (C.M.A. 1982)

(stating that an allegation must be supported by facts or

probative evidence warranting a reasonable inference of

partiality).   He did not.   In light of this, the military judge

did not abuse her discretion in denying Appellant’s motion for

recusal especially where, as here, the record discloses nothing

that shows Appellant was prejudiced by her failure to recuse

herself.

     Even assuming the military judge did err, application of

the factors outlined in Liljeberg v. Health Services Acquisition

Corp., 486 U.S. 847, 864 (1988), to the actual facts of this

case yields no basis for reversal.    The majority’s contrary

result is incongruous; there is not a single fact in the record

disclosing any prejudice to Appellant, and the only hypothetical

bias suggested by the military judge was in Appellant’s favor.

                 A.   No R.C.M. 902(a) Disqualification

     Rule for Court’s Martial 902(a) states that “a military

judge shall disqualify himself or herself in any proceeding in

which that military judge’s impartiality might reasonably be

questioned.”   R.C.M. 902(a) (emphasis added).   The test is

objective, not subjective.   Kincheloe, 14 M.J. at 50.    A

military judge’s impartiality is presumed.   See United States v.


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United States v. McIlwain, No. 07-0544/AR


Sherrod, 26 M.J. 30, 33 (C.M.A. 1988).     And the fact that a

military judge discloses a possible basis for recusal does not

require disqualification under the rule:

     We have emphasized that “where the military judge
     makes full disclosure on the record and affirmatively
     disclaims any impact on him, where the defense has
     full opportunity to voir dire the military judge and
     to present evidence on the question, and where such
     record demonstrates that appellant obviously was not
     prejudiced by the military judge’s not recusing
     himself, the concerns of R.C.M. 902(a) are fully met.”

Norfleet, 53 M.J. at 270 (quoting United States v. Campos, 42

M.J. 253, 262 (C.A.A.F. 1995)).

     Disqualification based solely upon appearances is

exceptional, and involvement in a companion case does not

warrant such an exception.   Sherrod, 26 M.J. at 33; Rivers, 49

M.J. at 444.   It is not derived from application of a simple

formulaic.   See Sherrod, 26 M.J. at 33 (analyzing for

prejudice); cf. United States v. Burton, 52 M.J. 223, 226-27

(C.A.A.F. 2000) (reviewing military judge’s questions on

sentencing for personal bias); Rivers, 49 M.J. at 444 (reviewing

military judge’s judicial involvement in a companion case and

concluding that involvement in a companion case alone is not

sufficient to require disqualification under R.C.M. 902(a)).1



1
  Parenteau v. Jacobson, 586 N.E.2d 15 (Mass. App. Ct. 1993), and
Walberg v. Israel, 766 F.2d 1071 (7th Cir. 1985), cited in the
granted issue are inapposite. In Parenteau, the judge abused
his discretion by subordinating concerns about bias to judicial

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United States v. McIlwain, No. 07-0544/AR


     In this case, the military judge stated on the record that

she had been involved in two companion cases, questioned whether

an impartial person might suspect her impartiality if she served

as the finder of fact in Appellant’s case, and advised Appellant

that she would recuse herself and get another military judge if

he chose a bench trial, which he did not do.   The military judge

complied with the procedure outlined in Norfleet and Campos.

Trial defense counsel had every opportunity to further voir dire

the military judge and present evidence, but chose not to, and

the record demonstrates no prejudice to Appellant from the

military judge’s denial of his recusal motion.

     The majority nonetheless holds that the military judge’s

statement is the basis for finding that she abused her

discretion in this case because she “was biased.”   Of course,

actual bias is a ground for recusal under R.C.M. 902(b).   But no

one suggests that this is an R.C.M. 902(b) case.    The majority



economy. 586 N.E.2d at 18. Further, the Parenteau record was
replete with facts showing a reason to question the judge’s
impartiality, not least of which was the judge’s statement that
he had previously assessed the appellant’s credibility and
determined “he was one of the biggest liars that I’d seen in a
long time.” Id. at 17. Walberg was an ineffective assistance
of counsel case, not a disqualification case in which,
similarly, the record showed the judge was so outwardly hostile
towards the appellant that during the suppression hearing he
answered the appellant’s questions before the appellant to
demonstrate the predictability of his answers and implied in
open court that the appellant was unworthy of the attorney’s
efforts on his behalf. 766 F.2d at 1073, 1077.


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United States v. McIlwain, No. 07-0544/AR


states that “[e]very time she ruled on evidence, asked

questions, responded to member questions, or determined

instructions, the military judge exercised her discretion, a

discretion that she admitted an impartial person would conclude

had not been exercised in an impartial manner.”   McIlwain, __

M.J. at __ (6).    But it fails to identify a single fact to

support the conclusion that the military judge’s decisions

throughout the trial were tainted, less than impartial, or that

Appellant was prejudiced in any way.

     Instead, the majority appears to rest its decision solely

on the military judge’s gratuitous statement about what people

might have thought about her presiding in a judge-alone trial

had the accused elected one.   But there is simply no legal

authority for the proposition that this conjecture alone

supports the conclusion that R.C.M. 902(a) disqualified her from

the members trial over which she in fact presided.   And the

problem, as Judge Baker explains in his separate dissent, with

which I agree, is that applying a contrary rule may discourage

judicial candor.   McIlwain, __ M.J. at __ (2-3) (Baker, J.,

dissenting).

     Since nothing in the record would lead a reasonable person

to question the military judge’s impartiality, and since having

heard a companion case is, as a matter of law, alone not enough




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United States v. McIlwain, No. 07-0544/AR


to present a R.C.M. 902(a) issue, I would hold that the military

judge did not abuse her discretion.

                     B. If Error, No Prejudice

     Even if a military judge errs in failing to recuse herself,

the reversal of a military judge’s decision is warranted only

when the record supports the conclusion that there is:     (1) a

risk of injustice to the parties in the case; (2) the risk that

denial of relief will produce injustice in other cases; and (3)

the risk of undermining the public’s confidence in the judicial

process.   United States v. Butcher, 56 M.J. 87, 92 (C.A.A.F.

2001) (citing Liljeberg, 486 U.S. at 864).   In this case, even

assuming the military judge erred, Appellant has not shown, and

the majority fails to explain, how Appellant, future litigants,

or public confidence were subjected to an increased risk of harm

by the decision of the military judge in this case.   See

Liljeberg, 486 U.S. at 864.   Reversal is not warranted.

     There is no showing of injustice to Appellant.

Traditionally, this Court has undertaken a record-intensive

analysis in weighing the first Liljeberg factor in order to find

an injustice.   See, e.g., Butcher, 56 M.J. at 92-93 (examining

the record to determine the risk of injustice based on the

timing of specific rulings during the trial); Burton, 52 M.J. at

226 (examining the record in determining whether military

judge’s questions reflected a personal bias against the


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United States v. McIlwain, No. 07-0544/AR


appellant).    Instead, in this case the majority summarily states

that “[t]he risk of injustice to the parties is high when a

military judge who has stated her bias nonetheless presides over

a court-martial, even when she does not act as the trier of

fact.”    McIlwain, __ M.J. at __ (8).   This truism is unrelated

to the facts of this case.

        First, the military judge did not state that she had a

bias.    She said only that in a bench trial, an impartial person

might assume she did because she presided over two companion

cases.    Therefore, she advised Appellant during his forum

election that, if Appellant chose a bench trial, she would

recuse herself and get another military judge in order to avoid

the perception that any ruling she made on witness credibility

in the earlier companion cases might be perceived as favorable

to her determination of Appellant’s guilt or innocence.    The

distance between the military judge’s statement and the

reasoning of the majority on this point is marked.

        Second, unlike in Sherrod, 26 M.J. at 31, Appellant does

not argue that his forum election was tainted by the military

judge’s statements or that the outcome of his case would have

been different had the military judge recused herself.    Finally,

neither Appellant nor the majority point to a single ruling,

comment, or fact at trial indicating the military judge

demonstrated bias or was prejudicial to Appellant.    The absence


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United States v. McIlwain, No. 07-0544/AR


of any fact on the record showing that there was an increased

risk of injustice to Appellant makes it difficult to see how the

first Liljeberg factor weighs in favor of reversal.

     I agree with the majority that the second Liljeberg factor

was not implicated in this case, but part ways on the analysis

of the third.   The majority holds that the military judge’s

decision undermined public confidence because “[e]very time the

military judge made a decision, she exercised her discretion --

a discretion which she herself had found was biased.”    McIlwain,

__ M.J. at __ (8).   As noted above, this is not what the

military judge said.   Moreover, it conflates R.C.M. 902(a) and

(b), and, even assuming error, ignores the ordinary rule that

something beyond error is required for reversal in any

disqualification case.   Liljeberg, 486 U.S. at 864; Butcher, 56

M.J. at 92.

     Based on this record, where the only evidence in support of

recusal under R.C.M. 902(a) was the fact that the military judge

had heard two companion cases, there was no risk that her

decision “undermin[ed] the public’s confidence in the judicial

process.”     Liljeberg, 486 U.S. at 864.   Instead, the record

reflects full transparency on the part of the military judge, no

partiality towards either party in the conduct of the trial,

that the findings and sentence were entered by a panel of

members, and that the only bias expressed by the military judge


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United States v. McIlwain, No. 07-0544/AR


was possibly in favor of Appellant.

     I respectfully dissent.




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United States v. McIlwain, No. 07-0544/AR


     BAKER, Judge (dissenting):

     The majority misreads the military judge’s statement.     In

doing so, it effectively creates a per se rule against military

judges sitting on companion cases.   For, if this military judge

were disqualified from sitting on Appellant’s case, then a

military judge should and would be disqualified in all companion

cases.    Therefore, I join Judge Ryan in her dissent, but I also

wish to make several additional points.

     Here is what the military judge in this case said on the

record:

        As I said, if you wanted to go with a judge, then I would
     not be comfortable sitting on your case because I feel that
     I’ve made decisions, frankly, probably favorable to you in
     terms of credibility of witnesses but, nevertheless,
     decisions that would suggest to an impartial person looking
     in that I can’t be impartial in this case.

Note that the military judge did not conclude she could not be

impartial.   Rather, while thinking out loud, she stated that an

objective observer might reach that conclusion if she sat as

judge alone.

     Nonetheless, the majority focuses exclusively on the last

clause of this statement, without addressing the essential

conditional predicate, namely, “if you wanted to go with a judge

[alone].”    In doing so, the majority effectively adopts a rule

providing that where a military judge has sat on any case and

“made decisions,” that military judge cannot sit on a companion
United States v. McIlwain, No. 07-0544/AR


case, regardless of whether the military judge is sitting as a

judge alone or with members.    That conclusion is ineluctable,

because there is no other way to distinguish this case from

every other companion-case circumstance involving a military

judge who has made decisions.   The majority asserts otherwise,

but there is no other basis on which recusal would have been

required in this case.

     That is not what United States v. Sherrod, 26 M.J. 30

(C.M.A. 1988), stands for, and as Judge Ryan’s dissent points

out, that is not the law.   Military judges are permitted to sit

on companion cases provided they can do so impartially.       In

summary, the majority, in my view, has over-read the record, and

in doing so has backed into a de facto per se rule of recusal,

rather than a contextual rule of recusal.

     I am also concerned about the effect of this Court’s

decision on practice in military courts.    I am not in a position

to address the possible impact on judicial resources if military

judges in fact recuse themselves from every companion case in

which they have “made decisions.”     More importantly, the

majority commends the military judge for her candor in fully

disclosing her participation in the companion cases by taking

her remarks out of context and reversing.    I fear that in the

future military judges might well adopt the safer course of

silence.   Rather than encouraging candor and the sort of


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United States v. McIlwain, No. 07-0544/AR


thinking out loud that permits parties to make informed

decisions subject to informed appellate review, the legal policy

message to military judges would appear to be keep your mouth

closed until you are prepared to speak in the declaratory

sentences of factual findings and conclusions of law.

     That is surely not good for military practice.     And it is

surely not the intent of the majority, which I know is focused

along with the dissents on the integrity of the military justice

system.




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