I know Judge Gregory Gross. With my cases, he was always even-handed and amazingly calm. However, none of my clients had an issue with facial hair. Apparently, that’s the breaking point, and the Court of Appeals for the Armed Forces (CAAF) did not mince words, and their vote was unanimous.
In short, they issued the following ruling:
Appellant’s writ-appeal petitions for mandamus andprohibition are hereby granted. In light of the above, the military judge is ordered removed. The appropriate authority shall detail a new military judge in this case. Further, the contempt convictions against Appellant, as well as the military judge’s order to forcibly shave Appellant, are hereby vacated.
In a bit more detail, here is some of their analysis:
As an initial matter, the command, and not the military judge, has the primary responsibility for the enforcement of grooming standards. See AR Reg. 600-20; Dep’t of Defense Instr. 1300.17, Accommodation of Religious Practices Within the Military Services (Feb. 10, 2009). The maintenance of discipline, unit cohesion and unit morale are command responsibilities and functions. A military judge’s contempt authority is directed toward control of the courtroom. Although the military judge here stated that Appellant’s beard was a “disruption,” there was insufficient evidence on this record to demonstrate that Appellant’s beard materially interfered with the proceedings. See R.C.M. 804 Discussion (“In order to justify removal from the proceedings, the accused’s behavior should be of such a nature as to materially interfere with the conduct of the proceedings.”). Thus, taken together, the decision to remove Appellant from the courtroom, the contempt citations, and the decision to order Appellant’s forcible shaving in the absence of any command action to do the same, could lead an objective observer to conclude that the military judge was not impartial towards Appellant.
In light of these rulings, and the military judge’s accusations regarding the latrine, it could reasonably appear to an objective observer that the military judge had allowed the proceedings to become a duel of wills between himself and Appellant rather than an adjudication of the serious offenses with which Appellant is charged.
For those of you frustrated with the already-long wait, the train has gone back to the station. Now, every decision made by Judge Gross will be reevaluated, especially in light of the heightened appellate scrutiny that accompanies any military death penalty case.
They’ll try to get it right, but that may no longer be possible. Hand it to defense counsel. They acted quickly, wisely, and decisively. They’re getting exactly what they want in a military death penalty case–a big mess.
H/T to JMo for alerting me to the news.
As an aside, this was also in the decision:
[Following an Hasan court appearance], the military judge went to the deliberation room latrine. He found what he described as “what appeared to be feces spread out on the floor” of the latrine. He then ordered defense counsel to “[g]et someone over to the courtroom immediately” to clean the latrine and stated that “[t]he accused will not use that latrine again.” At each subsequent hearing, the military judge held Appellant in contempt, fined him $1000, and had him removed from the courtroom to watch the proceedings by closed-circuit television.
Defense counsel submitted a “Renewed Motion to Disqualify the Military Judge.”1 The defense argued that the military judge had become personally biased against the accused because of his beard. Defense counsel also cited the latrine incident and stated that Department of Emergency Services (DES) personnel determined that the substance on the floor was in fact mud tracked in by a DES guard.