                       UNITED STATES, Appellee

                                    v.

             Christopher A. GREATTING, Staff Sergeant
                   U.S. Marine Corps, Appellant

                              No. 07-0575

                       Crim. App. No. 200401945

       United States Court of Appeals for the Armed Forces

                       Argued January 16, 2008

                          Decided May 6, 2008

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

                                 Counsel

For Appellant: Lieutenant Commander Kristina B. Reeves, JAGC,
USN (argued); Lieutenant Commander M. Eric Eversole, JAGC, USN
(on brief).

For Appellee: Major Brian K. Keller, USMC (argued); Commander
Paul C. LeBlanc, JAGC, USN, and Lieutenant Commander Jessica M.
Hudson, JAGC, USN.

Military Judge:   R. S. Chester


       This opinion is subject to revision before final publication.
United States v. Greatting, No. 07-0575/MC

     Judge ERDMANN delivered the opinion of the court.

     Staff Sergeant Christopher A. Greatting was the staff

noncommissioned officer-in-charge of the K-9 Military Working

Dog Section (K-9 Section) at Camp Pendleton.   Consistent with

his pleas at a general court-martial, Greatting was convicted of

a number of charges arising from his supervision of the K-9

Section, as well as wrongful use of marijuana.   At trial the

defense moved for the military judge’s recusal because he had

presided over four companion cases and had privately discussed

certain aspects of those cases with the convening authority’s

staff judge advocate (SJA).   The motion was denied.   The United

States Navy-Marine Corps Court of Criminal Appeals affirmed the

findings of guilty and the sentence.   United States v.

Greatting, No. NMCCA 200401945, 2007 CCA LEXIS 108, at *20, 2007

WL 1709533, at *8 (N-M. Ct. Crim. App. Mar. 29, 2007).    We

granted review to consider whether the military judge’s decision

not to recuse himself was an abuse of discretion.   65 M.J. 345

(C.A.A.F. 2007).

     “[A] military judge shall disqualify himself or herself in

any proceeding in which that military judge’s impartiality might

reasonably be questioned.”    Rule for Courts-Martial (R.C.M.)

902(a).   Presiding over companion cases does not alone

constitute grounds for recusal.   United States v. Lewis, 6 M.J.

43, 45 (C.M.A. 1978).   However, the ex parte discussion that



                                  2
United States v. Greatting, No. 07-0575/MC

took place between the military judge and the SJA prior to

Greatting’s court-martial and while clemency matters and appeals

in the companion cases were pending would lead a reasonable

person to question the military judge’s impartiality.

Considering the factors articulated by the Supreme Court in

Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847,

864 (1988), we conclude that Greatting is entitled to relief.

Accordingly, we reverse the Court of Criminal Appeals, set aside

the findings and sentence, and authorize a rehearing.1

                            BACKGROUND

     As the staff noncomissioned officer in charge of the K-9

Section at Camp Pendleton, Greatting was responsible for

ensuring that the handlers and the dogs were properly trained,

that there were proper records to document the training, and

that the kennel was run in accordance with applicable

regulations and orders.   Greatting and his subordinates worked

together to falsify paperwork that certified the dogs had

completed aspects of a training regimen that were never

undertaken.




1
  We also granted review as to whether the Court of Criminal
Appeals erred by failing to afford meaningful relief after
determining that Greatting was prejudiced by the denial of his
due process right to a timely review and appeal. 65 M.J. 345
(C.A.A.F. 2007). In light of our resolution of this case on the
recusal issue, we decline to reach that issue.



                                 3
United States v. Greatting, No. 07-0575/MC

     In addition, with Greatting’s knowledge and consent, some

members of the unit boarded unauthorized non-military dogs at

the base kennel.   One of these non-military dogs, a trained

attack dog, was seriously injured when the dog handlers tried to

control him.    Due to the dog’s injuries, Greatting’s

subordinates were required to put the dog down.   Greatting

subsequently lied to law enforcement agents about the dog,

reporting that the dog was fine after he knew the dog had been

killed.

     Four subordinate Marines in the K-9 Section were also

convicted, consistent with their pleas, of charges arising from

this conduct.   All of the companion cases were heard before

Judge C.   Staff Sergeant Ruben Cadriel was convicted on April

16, 2003, at a general court-martial.   In addition to charges

arising from the operation of the K-9 Section, Cadriel was also

convicted of assault and disobeying a superior commissioned

officer.   He was sentenced by Judge C to a bad-conduct

discharge, confinement for four years, and reduction to E-1.     On

October 4, 2004, the convening authority approved the sentence,

but suspended confinement in excess of seventy-five days

pursuant to Cadriel’s pretrial agreement.

     The other three Marines were tried by special court-

martial.   Corporal Aaron L. Hutchings was convicted on July 1,

2003, Corporal Jamie A. Marmolejo on July 7, 2003, and Sergeant



                                  4
United States v. Greatting, No. 07-0575/MC

Christian M. Blue on September 10, 2003.    Hutchings was

sentenced to reduction to E-3.   Marmolejo was sentenced to

reduction to E-1 and hard labor without confinement for three

months.   Blue was sentenced to reduction to E-2 and confinement

for seventy-five days.   The convening authority approved

Hutchings’s sentence on October 31, 2003.    On February 6, 2004,

the convening authority approved only the reduction in

Marmolejo’s case.   Blue’s sentence was approved on May 28, 2004.

     Greatting’s court-martial was convened on June 5, 2003 and

he was arraigned on August 11, 2003.   By the date of Greatting’s

arraignment, the court-martial proceedings for Cadriel,

Hutchings, and Marmolejo were completed, while Blue’s court-

martial was still pending.   The convening authority had yet to

take action in any of the cases.

     At Greatting’s arraignment, Judge C informed the parties:

          I have detailed myself to this court-martial in
     my capacity as the Circuit Military Judge for the
     Sierra Judicial Circuit. . . .

          I will not be a witness for either side in this
     case, and I am not aware of any matters which I
     believe may be a grounds for challenge.

          However, I would note for the record that I did
     preside over the cases of United States vs. Cadriel,
     Hutchings, and Marmolejo, which are all, I believe,
     related cases to this case.

     Judge C asked if either side wanted to conduct voir dire or

challenge his participation.   Greatting’s defense counsel

requested the opportunity to reserve both “given the fact that


                                   5
United States v. Greatting, No. 07-0575/MC

we do not know who is going to be the ultimate military judge,

although you do have the assignment authority.”    Judge C

indicated that it was his intention to preside over the case but

he would allow the defense to revisit voir dire and challenge at

a later time.    Greatting also reserved entering pleas at that

time.

        Court-martial proceedings for the last of Greatting’s

subordinates, Blue, concluded on September 10, 2003.    About two

weeks later, on September 23, 2003, Greatting signed a pretrial

agreement, which was approved by the convening authority on

September 30, 2003.    The pretrial agreement provided, in part,

that confinement in excess of fifteen months would be suspended,

as would any forfeitures.    Automatic forfeitures would be

deferred for the benefit of Greatting’s wife.

        Greatting’s court-martial reconvened on October 30, 2003.

Prior to Greatting entering his pleas, his defense counsel

requested the opportunity to conduct voir dire of the military

judge.    Judge C acknowledged that the underlying events in this

case were the same as the events in the four companion cases in

which he had presided.    While he agreed that the companion cases

dealt with the purported role played by Greatting in the various

offenses, he stated that he could not recall the specifics of

each case or whether each case touched upon Greatting.

        Judge C went on to state:



                                    6
United States v. Greatting, No. 07-0575/MC

          If I had to say, my recollection was that Staff
     Sergeant Cadriel had a greater involvement in what was
     going on, although some of the charges which aren’t
     here today, the accused is not going to plead guilty
     to today, involved drinking in the work spaces; and I
     believe Staff Sergeant Greatting was implicated in
     those cases that involved that allegation and was
     implicated in those as having approved that conduct as
     well as the falsification of certain records, the
     failure to train dogs and test them to certain
     standards.

     The defense counsel then asked Judge C whether he had

discussed these cases with anyone other than a fellow military

judge.    Judge C responded that he had, as it was his practice to

conduct post-trial critiques with counsel.   He also stated that

he talked to “the staff judge advocate and probably his

deputy[,] not about [Greatting’s] case other than that it was

coming, they mentioned it was coming, but about the other

cases.”   The military judge recounted his interaction with the

SJA as follows:

          With respect to Cadriel, it was that I thought
     they sold the case too low given his culpability, his
     admissions in the Court, given the severity of his
     conduct, and the repercussions of his conduct on the
     junior Marines that were involved in the section, the
     security of this installation.

            . . . .

          I think I also mentioned following the other, as
     you indicated three cases and I think that’s right,
     the other three cases, that I felt given the level of
     culpability of Cadriel versus the younger Marines who
     were perhaps more guided or motivated by misguided
     loyalty to the two staff NCO’s that they worked for, I
     questioned the appropriateness of their being at a
     special court-martial.



                                  7
United States v. Greatting, No. 07-0575/MC

      Judge C stated that he would not second-guess or presuppose

what the pretrial agreement provided for in Greatting’s case and

that he had no preconceived ideas of what the sentence should

be.   He said that he believed he would be able to put the other

cases out of his mind and judge the case on the facts introduced

in the proceeding before him.   Following voir dire, the defense

counsel moved for Judge C to recuse himself on the basis of

implied bias under R.C.M. 902(a).    The motion was denied.

      After Judge C accepted Greatting’s pleas and conducted a

sentencing hearing, he sentenced Greatting to six months

confinement, reduction to E-1, and a bad-conduct discharge.      The

confinement limitation of fifteen months in the pretrial

agreement was therefore not triggered.   The convening authority

approved the sentence but reduced confinement to ninety days as

an act of clemency.

      On appeal to the Court of Criminal Appeals Greatting

argued, inter alia, that the military judge abused his

discretion when he denied the motion to recuse himself.    The

lower court held that the military judge was not disqualified

and did not abuse his discretion by presiding over the case.

Greatting, 2007 CCA LEXIS 108, at *9-*11, 2007 WL 1709533, at

*4.




                                 8
United States v. Greatting, No. 07-0575/MC

                            DISCUSSION

     Before this court, Greatting renews his argument that Judge

C abused his discretion in denying the motion to recuse himself.

Noting that Judge C presided over four companion cases and

provided advice to the SJA regarding the proper forums and

sentences in those cases, Greatting contends that Judge C’s

activities created the appearance that the military judge had

become an advocate for the Government.   As such, Greatting

argues, Judge C’s actions created a reasonable question

regarding his impartiality and he should have recused himself on

the grounds of implied bias under R.C.M. 902(a).

     The Government responds that there was no implied bias and

characterizes Judge C’s discussion with the SJA as a “personal

and private conversation between two military officers regarding

already completed courts-martial.”   The Government goes on to

contend that there was no risk to fairness or public perception

because Greatting was the last of the coconspirators to enter

pleas of guilty and sign a pretrial agreement, his adjudged

sentence was far less than the next most culpable member of the

conspiracy, and he received clemency resulting in only ninety

days of confinement.

     “An accused has a constitutional right to an impartial

judge.”   United States v. Butcher, 56 M.J. 87, 90 (C.A.A.F.

2001) (citation and quotation marks omitted).   R.C.M. 902(a)



                                 9
United States v. Greatting, No. 07-0575/MC

provides that “a military judge shall disqualify himself or

herself in any proceeding in which that military judge’s

impartiality might reasonably be questioned.”   In reviewing a

military judge’s ruling on a recusal motion, we consider the

facts and circumstances under an objective standard.   Butcher,

56 M.J. at 91.    The test is whether there was “[a]ny conduct

that would lead a reasonable man knowing all the circumstances

to the conclusion that the judge’s impartiality might reasonably

be questioned.”   Id. (citation and quotation marks omitted).

     It has long been recognized that merely presiding over a

companion case does not constitute grounds for disqualification.

See Lewis, 6 M.J. at 45; United States v. Jarvis, 22 C.M.A. 260,

262, 46 C.M.R. 260, 262 (1973).    Were that the sole issue before

us, we would have no hesitation in affirming the action of the

Court of Criminal Appeals.   In this case, however, we are

concerned about Judge C’s decision to provide an ex parte

critique to the SJA “and probably his deputy” about the overall

prosecution of the K-9 Section defendants at a time when court-

martial proceedings had not yet commenced in one of the cases,

and where clemency matters and appeals had not been completed in

any of the cases.

     The Uniform Code Military Justice (UCMJ) and the Manual for

Courts-Martial, United States give the convening authority

significant power and discretion in proceedings related to



                                  10
United States v. Greatting, No. 07-0575/MC

trials by courts-martial.   See Article 60, UCMJ, 10 U.S.C. § 860

(2000); R.C.M. 407; R.C.M. 705; R.C.M. 1107.   The convening

authority’s SJA is responsible for providing critical legal

advice on these issues.   Article 60(d), UCMJ; R.C.M. 105(a);

R.C.M. 406; R.C.M. 1106; R.C.M. 1113(c)(1)(B).   We have

previously held that the nature of relationships between a

military judge and non-judge members of the judge advocate

community requires increased vigilance to ensure propriety:

          The interplay of social and professional
     relationships in the armed forces poses particular
     challenges for the military judiciary. Both before
     and after service in the judiciary, a judge advocate
     typically will serve in a variety of assignments as a
     staff attorney and supervisor. Such assignments
     normally include duties both within and outside the
     field of criminal law. In the course of such
     assignments, the officer is likely to develop numerous
     friendships as well as patterns of societal activity.
     . . . When assigned to the judiciary, the military
     judge frequently will find himself or herself in close
     and continuing contact with judge advocates outside
     the courtroom. . . . In light of these [and other]
     circumstances, members of the military judiciary must
     be particularly sensitive to applicable standards of
     judicial conduct.

Butcher, 56 M.J. at 91.

     We have also recognized that:

          Ex parte contact with counsel does not
     necessitate recusal under R.C.M. 902(a), particularly
     if the record shows that the communication did not
     involve substantive issues or evidence favoritism for
     one side. However, an ex parte communication which
     might have the effect or give the appearance of
     granting undue advantage to one party cannot be
     condoned.




                                11
United States v. Greatting, No. 07-0575/MC

United States v. Quintanilla, 56 M.J. 37, 79 (C.A.A.F. 2001)

(citation and quotation marks omitted).   We believe the same

holds true when considering the propriety of ex parte contact

between a military judge and an SJA.

     Here, a judicial officer provided case-specific criticism

to the convening authority’s SJA and “probably his deputy” about

companion cases.   While clearly aware that Greatting’s case was

coming to trial, Judge C told the SJA that the convening

authority had sold Cadriel’s case “too low” and mentioned that

the younger marines “were perhaps more guided or motivated by

misguided loyalty to the two staff NCO’s that they worked for.”

He provided this criticism in an ex parte conversation with the

very individual responsible for advising the convening authority

on all aspects of the K-9 Section cases, including the terms of

pretrial agreements and clemency recommendations.    And he did so

before clemency matters had been resolved in any of the

companion cases and possibly before the pretrial agreement in

Greatting’s case had been finalized.   Also, after commenting on

the potential culpability of Greatting as one of the “two staff

NCOs”, he later assigned himself Greatting’s case.

     In the circumstances of this case, we conclude that the

military judge’s ex parte discussion with the SJA would lead a

reasonable person, knowing all the circumstances, to the

conclusion that the military judge’s impartiality might



                                12
United States v. Greatting, No. 07-0575/MC

reasonably be questioned.   We hold that he was obliged to recuse

himself under R.C.M. 902(a) and that he abused his discretion by

not doing so.2

     Having found that the military judge abused his discretion

by denying the recusal motion, we next consider whether relief

is warranted.    In making this determination we have relied on

the factors set forth in Liljeberg, a case in which the Supreme

Court considered whether reversal was warranted where a judge

had erroneously failed to recuse himself under 28 U.S.C. §

455(a), the civilian equivalent of R.C.M. 910(a).   486 U.S. at

858-64; see Butcher, 56 M.J. at 92; see also Quintanilla, 56

M.J. at 80-81.   These three factors are “the risk of injustice

to the parties in the particular 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.”

Liljeberg, 486 U.S. at 864.

     Greatting argues that relief is warranted because the

conversation had a detrimental impact on his pretrial agreement

to the extent it capped the maximum period of confinement at


2
  Our consideration of this case is limited to the issue of
implied bias under R.C.M. 902(a). We need not and do not reach
questions of actual bias. Contrary to the suggestion of the
dissent, therefore, our finding of error does not suggest that
Judge C was specifically biased toward a harsh sentence in this
case. United States v. Greatting, ___ M.J.___ (3) (C.A.A.F.
2008) (Stucky, J., dissenting). Nor have we assumed that Judge
C approached the case with any sort of vengeful agenda. Id. at
___ (2-3).

                                 13
United States v. Greatting, No. 07-0575/MC

fifteen months, well beyond the seventy-five day maximum in

Cadriel’s pretrial agreement.3    Greatting also argues that public

confidence and future accused are at risk if the court condones

a system that allows a military judge to interfere in the

referral process and a convening authority’s decision to

negotiate a pretrial agreement.

     In response, the Government contends that there is no risk

of injustice to Greatting where his adjudged sentence of six

months was lower than the confinement limitation of fifteen

months provided for in the pretrial agreement, and where the

military judge overruled Government objections to defense

sentencing witnesses.   The Government also contends that the

fact that Greatting was the last to enter a pretrial agreement

explains the disparity between the confinement term in his

agreement and the confinement term in the pretrial agreements of

his codefendants.   The Government maintains that “[n]o

reasonable person, apprised of the facts in this case and the

companion cases, would believe that the judicial process did not

work where [Greatting] pled guilty, presented sentencing




3
  Greatting alleged in his brief that the pretrial agreement in
each of the companion cases limited confinement to seventy-five
days while Greatting’s agreement extended to fifteen months.
Greatting does not point to evidence in the record to support
this assertion. The convening authority’s discussion of the
companion cases in Greatting’s court-martial order supports this
assertion only as to Cadriel.

                                  14
United States v. Greatting, No. 07-0575/MC

evidence, and ultimately received an approved and executed

sentence extending only to 90 days and a bad-conduct discharge.”

     Focusing first on fairness to the parties, we conclude that

the conversation between Judge C and the SJA about the sentence

limitations in Cadriel’s pretrial agreement could be seen to

have had a negative impact on the terms of Greatting’s pretrial

agreement.   The record does not make clear exactly when the

conversation took place, but it is apparent that the

conversation could have occurred before the convening authority

agreed to the terms of Greatting’s pretrial agreement.   While

other factors may well have contributed to the disparity between

the two confinement caps, the record establishes a risk that the

military judge’s conversation with the SJA adversely affected

Greatting’s position in pretrial negotiations.

     As to the second factor, risk that denial of relief will

produce injustice in other cases, we stated in Butcher that

under the facts of that case it was “not necessary to reverse

the results of the present trial in order to ensure that

military judges exercise the appropriate degree of discretion in

the future.”   56 M.J. at 93.   Nevertheless, we do not believe

that considerations under this factor caution us against

awarding relief.   As stated in Liljeberg, “providing relief in

cases such as this will not produce injustice in other cases; to

the contrary, [enforcing R.C.M. 902(a)] may prevent a



                                 15
United States v. Greatting, No. 07-0575/MC

substantive injustice in some future case by encouraging a

[military] judge . . . to more carefully examine possible

grounds for disqualification . . . .”   486 U.S. at 868.

     We now turn to the third factor, whether the circumstances

of this case create the risk of undermining the public’s

confidence in the judicial process.   In an ex parte conversation

with the SJA, Judge C criticized the manner in which the

convening authority was handling the K-9 Section defendants,

while Greatting’s case was pending and before the convening

authority had considered clemency in any of the cases.     Such

interference by a judicial officer into matters entirely within

the discretion of the convening authority is not only

inappropriate, it gives the appearance that Judge C was aligned

with the Government.4   This infringement was exacerbated when

Judge C subsequently assigned himself to the Greatting case

after he had commented on Greatting’s potential culpability.

     The Supreme Court recognized in Liljeberg that we “must

continuously bear in mind that to perform its high function in

the best way justice must satisfy the appearance of justice.”

486 U.S. at 864 (citation and quotation marks omitted).    The

conduct of Judge C in this case has created the risk of


4
  There is a significant difference between a military judge
conducting a post-trial critique of trial counsel’s performance
and a military judge critiquing the convening authority’s
actions in prior companion cases and commenting on the potential
culpability of a defendant in an upcoming case.

                                16
United States v. Greatting, No. 07-0575/MC

undermining the public’s confidence in the military justice

system.   Under the Liljeberg factors, Greatting is entitled to

relief.

                             DECISION

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is reversed.     The findings of guilty and

sentence are set aside.   The record of trial is to be returned

to the Judge Advocate General of the Navy and a rehearing is

authorized.




                                17
United States v. Greatting, No. 07-0575/MC


     STUCKY, Judge (dissenting):

     The majority finds prejudicial error in the military

judge’s private conversation with the staff judge advocate (SJA)

about four already-completed cases and sets aside the findings

and sentence pursuant to the multi-factor analysis of Liljeberg

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

Because I would find no error or, alternatively, find any

assumed error not prejudicial under Liljeberg, I respectfully

dissent.1

     The conversation between the military judge and the

convening authority’s SJA neither concerned Appellant’s case nor

gave any indication of a lack of impartiality by the military

judge.   The military judge admitted talking “with the staff

judge advocate and probably his deputy[,] not about

[Appellant’s] case other than that it was coming . . . but about

the other cases.”     In particular, he told the SJA that

          With respect to Cadriel, it was that I thought
     they sold the case too low given his culpability, his
     admissions in the Court, given the severity of his
     conduct, and the repercussions of his conduct on the
     junior Marines that were involved in the section, the
     security of this installation.

            . . . .

1
  Trial defense counsel requested recusal based on the military
judge’s “extensive exposure to the related cases and the nature
of that exposure.” As the majority correctly notes, however,
presiding over companion cases does not, without more,
constitute grounds for recusal. United States v. Lewis, 6 M.J.
43, 45 (C.M.A. 1978).
United States v. Greatting, No. 07-0575/MC


          . . . [F]ollowing my adjourning the Court, the
     defense counsel and the accused were high-fiving in
     the back of the courtroom and I felt that very
     inappropriate, unprofessional, and displayed a lack of
     remorse I thought on behalf of the accused in that
     particular case, and that was the Cadriel case.

          I think I also mentioned following the other
     . . . three cases . . . , that I felt given the level
     of culpability of Cadriel versus the younger Marines
     who were perhaps more guided or motivated by misguided
     loyalty to the other two staff NCO’s that they worked
     for, I questioned the appropriateness of their being
     at a special court-martial.

The military judge also assured trial defense counsel that he

could decide Appellant’s case fairly, based on the facts

presented at Appellant’s court-martial alone.

     These statements fall into two categories, neither of which

has the effect or gives the appearance of granting an undue

advantage to one party in Appellant’s court-martial.   United

States v. Quintanilla, 56 M.J. 37, 79 (C.A.A.F. 2001).     First,

the military judge’s critique of trial defense counsel’s

inappropriate conduct can hardly be considered error, let alone

illustrative of prejudice.   Indeed, a military judge has a duty

under the Rules of Professional Conduct to advise an SJA of the

unprofessional conduct of junior attorneys.   See Dep’t of the

Navy, Judge Advocate General Instr. 5803.1C, Professional

Conduct of Attorneys Practicing Under the Cognizance and

Supervision of the Judge Advocate General, Enclosure (1):    Rules

of Professional Conduct Rule 8.3 (Nov. 9, 2004).   Second, to



                                 2
United States v. Greatting, No. 07-0575/MC


suggest that the military judge’s comments about Staff Sergeant

(SSgt) Cadriel’s relatively low sentence evidenced a bias toward

a harsh sentence in Appellant’s case ignores civilian defense

counsel’s concession that no actual bias existed in this case

and assumes a perverse willingness on the part of the military

judge to use Appellant’s court-martial to avenge a perceived

failing in SSgt Cadriel’s case.

       I am aware of no case law supporting the proposition that

a private conversation such as the one in this case constitutes

grounds for recusal.   In re Boston’s Children First, 244 F.3d

164 (1st Cir. 2001), and United States v. Cooley, 1 F.3d 985

(10th Cir. 1993), cited by Appellant, are inapposite.   Both

cases involved judges who commented on pending cases through the

national media.   Children First, 244 F.3d at 166 (letter to the

editor of the Boston Herald); Cooley, 1 F.3d at 990 (television

interviews, including one with Barbara Walters).   The military

judge in this case spoke to the convening authority’s SJA in

private and restricted his comments to matters no longer before

him.   Before today, such actions were not, to my knowledge, even

considered inappropriate, let alone grounds for recusal.2


2
  I do not question that it might have been better practice for
the military judge to have limited his comments to the arguably
improper behavior of counsel, and kept his comments regarding
sentencing in other cases to himself. However, the question
before us is whether recusal was required, and I cannot find it
was on these facts.

                                  3
United States v. Greatting, No. 07-0575/MC


     Even assuming arguendo that the military judge abused his

discretion by not recusing himself, I would decline to reverse

for want of prejudice.   While the majority correctly notes that

Liljeberg requires us to assess (1) the risk of injustice to the

parties in the particular 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 judiciary, I do

not find the majority’s analysis persuasive.   Liljeberg, 486

U.S. at 864.

     The risk of injustice to Appellant is minimal.   Appellant,

after all, pled guilty, and providently so, and the military

judge handed down a sentence with confinement of less than half

the limitation in Appellant’s pretrial agreement (PTA).   The

majority concedes that the disparity between the confinement cap

in Appellant’s case and those in the companion cases may have

resulted, in part, from the fact that Appellant was the last to

enter a PTA.   Together with its failure to provide any evidence

that the military judge’s conversations with the SJA influenced

the convening authority’s decision to agree to the terms of

Appellant’s PTA, these facts make the majority’s conclusion that

Appellant faced a significant risk of injustice highly dubious.

     Furthermore, not reversing this case will not produce

injustice in other cases.   This Court clearly stated in United

States v. Butcher, 56 M.J. 87 (C.A.A.F. 2001), that “[i]t is not


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United States v. Greatting, No. 07-0575/MC


necessary to reverse the results of the present trial in order

to ensure that military judges exercise the appropriate degree

of discretion in the future.”   Id. at 93.    This prong

essentially asks us to consider whether a lack of reversal would

encourage similar conduct in the future.     The facts of this case

are so distinct and innocuous –- private conversations about

already-completed trials –- that I very much doubt that they

could encourage any pattern of undesirable behavior.

     Finally, the public’s confidence in the military justice

system will likely not be undermined by the military judge’s

conduct in this case.   Given the guilty plea and the lenient

sentence, no reasonable person could view the entire facts of

this case and see bias and, as such, no reasonable person could

see this case as a taint on the image of the military judiciary.

     Therefore, since I would find no error, and any assumed

error does not warrant relief under the applicable standard, I

respectfully dissent.




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