Air Force Court of Criminal Appeals--Martinez

An "enlisted" panel convicted Martinez of sexual assault and an attempted sexual assault. He was sentenced to six years, TF, RiR, and a DD. Of 11 issues, the motion for the MJ's recusal is the most interesting.

​Appellant argues the military judge was biased against the lead trial defense counsel, and the military judge should have therefore recused himself from Appellant’s court-martial. Appellant argues as a second basis for relief that the military judge should have recused himself based upon the appearance of bias on the military judge’s part. As a remedy, Appellant asks us to set aside the findings and sentence. In support of his argument, Appellant cites to a number of events occurring both before and during his court-martial; we only address the most significant events raised.

It appears that in the motion for a mistrial, after findings,

The Defense advanced two grounds: (1) inadequate notice with respect to the specification alleging an attempted sexual assault on Ms. ES (and relatedly, a perceived incongruity between a conviction for that offense and an acquittal for abusive sexual contact arising out of the same conduct), discussed in greater detail in Section II.D., infra; and (2) disparate treatment of the parties by the military judge. With respect to the second ground, trial defense counsel asserted there were “countless examples” of such disparate treatment, but they specifically referred to three instances they believed supported their argument: (1) discovery related to opening and closing slides; (2) objections to the Defense’s opening statement regarding the military judge’s ​Mil. R. Evid. 412 ruling; and (3) selective enforcement of the military judge’s scheduling order.

At one point, the court opines,

​While many aspects of the interaction between the military judge and trial defense counsel may be subject to valid criticism, we conclude the record does not support a conclusion the military judge abused his discretion in not recusing himself.

There are numerous events during the trial worth considering for the future. But,

The military judge was also quick to lecture the Defense about following his rulings, asking rhetorically at one point, “Do people not care what my rulings are if they’re going to sort of go around them?” This question, of course, came in the middle of a longer critique of the Defense which had been initially spurred by the military judge’s erroneous recollection of his own written Mil. R. Evid. 412 ruling. Rather than admit his error, the military judge suggested the ruling was just “inartfully drafted,” sua sponte reconsidered the ruling “to provide a little bit more clarity,” and sustained two of the Government’s objections to the Defense’s opening statement—even though that opening statement fell within the bounds of the military judge’s original ruling.

But,

​Government counsel, on the other hand, largely escaped unscathed. For example, when trial counsel suggested trial defense counsel had engaged in “bad lawyering”—a comment flowing from trial counsel’s incorrect recollection of the military judge’s written Mil. R. Evid. 412 ruling—the military judge charitably referred to the comment as “a momentary lapse of hyperbole, an emotion based on a contentious issue.” When trial counsel defied the military judge’s ruling prohibiting evidence of Ms. ES’s prior allegations of sexual assault, the military judge not only allowed Ms. ES’s arguably false answer to stand, but he simply told trial counsel to “tread lightly” and “be more careful than ever.”

There also did not appear to be a reaction to a comment in a Government motion along the lines of, "General gripes about the Government’s charging in this case may be therapeutic to express in a motion, but they do not give rise to the requested remedy."

Ultimately the Appellant got some relief with one charge set-aside without prejudice (based on an instructional error) and the sentence was set-aside.