Petition for Writ of Certiorari — Winter v. United States

Supreme Court, US

\ 92-101 FILED

NOV 23 1992

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UONICE OF THE GckX j

IN THE —— :

Supreme Court of the United States

OCTOBER TERM, 1992

HuGuH K. WINTER,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Military Appeals

PETITION FOR A WRIT OF CERTIORARI

DAVID J. JIVIDEN

Counsel of Record

Captain, United States Air Force

Appellate Defense Division

Air Force Legal Services Agency

Bldg. 5683

Bolling AFB, DC 20832-6128

(202) 767-1562

ROBERT G. PETERSON

EDWARD C,. PETERSON

Counsel for Petitioner

39 S. LaSalle Street—Suite 404

Chicago, Illinois 60603

(312) 236-6629

QUESTIONS PRESENTED

1. Whether the Court of Military Appeals erred in

ruling that consideration of extensive evidence prejudicial

to defendant in a plea providency hearing was not a per

se disqualification and employing no other standard.

2. Whether the Court of Military Appeals erred in

determining that the thoroughness of the judge in con-

ducting the plea providency hearing satisfactorily demon-

strated his impartiality, rather than concluding that the

judge’s conscientiously detailed inquiry did itself render

him objectively suspect.

8. Whether the Court of Military Appeals erred in not

requiring a record of due consideration of recusal by a

judge who had heard extensive evidence prejudicial to

defendant during a plea providency hearing.

4. Whether the Court of Military Appeals erred in

limiting the minimum requirement for recusal to whether

an intractible opinion as to the guilt of the accused was

formed, rather than whether an opinion on one or more

key elements of the offense was formed.

5. Whether the Court of Military Appeals erred in not

finding reversible error in the fact that the military

judge failed to remind the accused of his right to trial

by a panel after a plea providency hearing in which he

had heard substantial evidence prejudicial to defendant.

6. Whether the Court of Military Appeals erred in

relying on the Defense to move for recusal or a trial by

members rather than following the rule that the judge

must decide such matters without request.

7. Whether the Court of Military Appeals erred, first

in not accepting review of the question of whether, as

a matter of luw, the evidence at trial was insufficient,

and then, when the record before it manifested that fact,

in failing to recognize the prejudicial impact of the pro-

cedural improprieties previously presented.

(i)

ii

8. Whether this Court, pursuant to its authority over

all federal judicial proceedings, ought to direct that un-

der some conditions, including those of this case, a mili-

tary judge must recuse himself, or convene a panel to

try the facts of the case.

TABLE OF CONTENTS

IE CEMENT. <cincinscnsuidanntnstcbiassnatesentrsananesintsovactennats

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CONSTITUTIONAL PROVISIONS INVOLVED .......

STATEMENT OF THE CASE ............. sass isamubuubeabceceeaias

REASONS FOR GRANTING THE WRIT ................ .

3

IT.

Il.

IV.

VI.

THE COURT OF MILITARY APPEALS AP-

PLIED THE WRONG STANDARDS FOR DE-

TERMINING WHAT PRETRIAL INFORMA-

TION WAS PERMITTED THE TRIAL

A eea desea hsictantngiciensaslieadioneions

A MAJOR SAFEGUARD DESIGNED TO PRE-

VENT IMPROVIDENT GUILTY PLEAS

CAN AND DID MATERIALLY OBSTRUCT

A FAIR AND IMPARTIAL TRIAL ...............

THE FAILURE OF THE TRIAL JUDGE TO

CONSIDER RECUSAL AND TO MAKE A

RECORD OF SUCH CONSIDERATION CON-

STITUTED ERROR IN ITSELF .......................

THE JUDGE SHOULD HAVE RECUSED

HIMSELF BECAUSE HE HAD FORMED A

FIRM OPINION ON KEY ELEMENTS OF

BE II iit inanercnssnsccnnes “oS ELTA ee

UPON CONCLUDING THE PLEA PROVI-

DENCY HEARING, IT WAS ERROR FOR

THE JUDGE NOT TO REOPEN THE QUES-

TION OF DEFENDANTS RIGHT TO A TRIAL

BY PANS OF MEMBER ................................

THE ONUS FOR THE PROVISION OF AN

IMPARTIAL FORUM IS ON THE JUDGE,

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(iii)

10

12

14

16

iv

TABLE OF CONTENTS—Continued

Page

VII. THE DECISION OF THE COURT OF MILI-

TARY APPEALS DEMONSTRATES THAT

THE TRIAL PROCESS WAS HOPELESSLY

Eg ORE SO AE STENT TEN 16

VIII. THIS COURT SHOULD DIRECT LOWER

COUKTS’ PROCEEDINGS SO THAT THEY

COMPLY WITH MINIMUM STANDARDS... 18

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Vv

TABLE OF AUTHORITIES

CASES: Page

Cheff v. Schanackenberger, 384 U.S. 373, 16 L.Ed.

BL Me REI TIT «ssc ccccecctcmucnresnessenennionientenanecmsictcanibone 19

McNabb v. U.S., 318 U.S. 332, 87 L.Ed. 819, 63

fn A RRR se ea ee ee ee 18

In re Murchison, 349 U.S. 133, 186, 99 L.Ed. 942,

ee | erat 5,8

United States v. Bradley, 7 M.J. 332 (CMA 1979) .. 5, 6, 7,

8,13

U.S. v. Gallington, 488 F.2d 637 ..... eee 11

U.S. v. Le Frere, 553 F. Supp. 138 ..................0........ 11

BF el Wis I, re te MI eh ckanvanceacteickenecccs setebicisacesucs

United States v. Melton, 1 M.J. 528 (AFCMR

| INES AES RY ne a as PO Se Se COC ee 8

U.S. v. Montecalvo, 545 F.2d 684 ........ Eays cee eee 11

United States v. Peterson, 23 M.J. 828 (ACMR

| RES TET Ae Wy ee oh Pe a SERRE OD 7

U.S. v. Sonderup, 689 F.2d 294 0.00000. 11

STATUTE:

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IN THE

Siywreuw Court of the United States

OCTOBER TERM, 1992

No.

HuGH K. WINTER,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Military Appeals

PETITION FOR A WRIT OF CERTIORARI

The petitioner, Hugh K. Winter, respectfully prays that

a writ of certiorari issue to review the judgment of the

United States Court of Military Appeals entered in his

case on August 28, 1992.

OPINIONS BELOW

The opinion of the United States Court of Military

Appeals is reported at (C.M.A. 1992) (Ap-

pendix A). The opinion of the United States Air Force

Court of Military Review issued on —-——— is reported

as (A.F.C.M.R.) (Appendix B).

(1)

2

JURISDICTION

The Final order of the United States Court of Mili-

tary Review was entered on September 29, 1992 (Appen-

dix C). The jurisdiction of the Court is invoked under

28 U.S.C.A. 1859(3) (Supp. 1992) and 10 U.S.C.A. 867

(a) (Supp. 1992).

CONSTITUTIONAL PROVISIONS INVOLVED

Article III, Section 1 of the Constitution of the United

States provides in pertinent part:

The Judicial Power of the United States shall be

vested in one Supreme Court....

The Fifth Amendment of the Constitution of the

United States provides in relevant part:

No person shall .... be deprived of life, liberty, or

property without due process of law...

The Fourth Amendment of the Constitution of the

United States provides in relevant part:

(NJor shall any state de ‘ any person of liberty

or property, without uue process of law. . .

STATEMENT OF THE CASE

Petitioner was convicted, contrary to his pleas, of one

charge and one specification of murder, in violation of

Article 118, UCMJ. (He pleaded guilty to involuntary

manslaughter, in violation of Article 119, UCMJ, but the

military judge rejected these pleas). The charge was

based on the 7 October 1989 death of appellant’s 7 week

old infant son.

Petitioner was a 19 year old, recently wed father at

the time of the alleged offense. The child was Petition-

er’s first and he appears to have had no previous experi-

ence in child rearing whatsoever. The infant was ap-

parently afflicted with colic and thrush, a condition that

3

caused him to cry and fuss considerably. Testimony dem-

onstrated that Petitioner was very concerned about his

son’s well-being. (R. 168-172). On 28 September 1989,

appellant had taken the baby to Cannon AFB hospital.

The child was running a fever and had gone limp while

appellant was bouncing the new born on his knee. (Pros.

Exh. 3 & 4). After a battery of tests, the medical per-

sonnel told Petitioner that the child had colic and gave

the young couple medicine for thrush. (Pros. Exh. 5).

On 7 October 1989, Petitioner sat with the baby while

his wife went to a nearby shop to get her hair cut. (R.

78-86; Pros. Exh. 3 & 4). The child had been fussing

and crying. Petitioner, in statements made to the police

later, indicated that he placed the baby over his shoulder

to burp the youngster. The child went limp, and, in an

effort to arouse him, appellant shook him with increasing

vigor. The child did not respond and appellant tried to

bathe the baby in the sink, as this had on 28 September

1989 helped revive the child. The baby still did not re-

spond and Petitioner began to panic. He called his wife

at the beauty shop and when she arrived home, the young

couple drove the baby to the hospital.

Medical personnel tried to resuscitate the lifeless child,

but to no avail. (R. 62-64; 86-94; 95-97; 98-122). At-

tending physicians testified that the baby appeared to

have died 30 minutes to 2 hours prior to his arrival at

the hospital. (R. 89-90).

A subsequent autopsy showed two injuries to the baby’s

brain and several minor bruises on his head and scalp.

(Pros. Exh. 9). Retinal hemorrahages and optic nerve

sheath damage, coupled with the subdural hematoma, led

the forensic pathologist to conclude that the baby had

been shaken and that this shaking had caused brain in-

juries leading to his death. (R. 123-138).

Such other facts as are necessary to the issue presented

are contained in the argument.

4

REASONS FOR GRANTING THE WRIT

INTRODUCTION

This Court has often provided guidance, leadership,

and direction to lower Courts regarding conduct of their

proceedings. Without such direction, lower courts, while

attempting to provide a fair and balanced process to all

parties, do not provide clear and definite standards in

some areas. This case presents an opportunity to forge

rules for the proper conduct of pre-trial and trial pro-

ceedings, the lack of which brings into doubt the fairness

of judicial proceedings.

This case depends upon a fundamental legal principle

familiar to all Courts, namely, the factfinder in any trial

must decide the case based upon the evidence presented at

the trial and no other facts. In this particular case, the

military judge heard a great deal of testimony outside

the trial. He was required to do so in order to deter-

mine the providence of the defendant’s guilty plea to a

lesser charge. Nevertheless, but in the course of that

hearing, the judge heard evidence which incriminated the

defendant but was not presented or even admissible at

trial. The judge formed firm conclusions concerning the

sufficiency of the facts to justify a finding against the

defendant on all but one of the elements of the charge,

and then after being dissatisfied concerning the final ele-

ment and rejecting the plea, the judge proceeded to try

the case without a panel.

This Court has previously cautioned on the danger of

extensive pre-trial involvement of the trial judge es-

pecially in a felony criminal case. The concern this court

has always shown for this problem was expressed by Mr.

Justice Black as follows:

A fair trial in a fair tribunal is a basic require-

ment of due process. Fairness of course requires an

absence of actual bias in the trial of cases. But our

system of law has always endeavored to prevent even

5

the probability of unfairness. To this end no man

can be a judge in his own case and no man is per-

mitted to try cases where he has an interest in the

outcome. That interest cannot be defined with pre-

cision. Circumstances and relationships must be con-

sidered. This Court has said, however, that “Every

procedure which would offer a possible temptation to

the average man as a judge * * * not to hold the

balance nice, clear and true between the State and

the accused denies the latter due process of law”

Tumey v. State of Ohio, 273 U.S. 510, 532, 47 S.Ct.

437, 444, 71 L.Ed. 749. Such a stringent rule may

sometimes bar trial by judges who have no actual

bias and who would do their very best to weigh the

scales of justice equally between contending parties.

But to perform its high function in the best way.

“justice must satisfy the appearance of justice.”

Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct.

11, 13. (In Re Murchison, 349 U.S. 133, 136, 99 L.Ed.

942, 75 S.Ct. 623 (1955)

This case provides an occasion to establish some clear

guidelines for this problem area. It would not solve

every problem, but could help the trial courts in some

of their more difficult situations.

I. THE COURT OF MILITARY APPEALS APPLIED

THE WRONG STANDARD FOR DETERMINING

WHAT PRETRIAL INFORMATION WAS PER-

MITTED THE TRIAL JUDGE.

The Court of Military Appeals’ opinion is absolute.

Three times, in differing words, the court recited that

there is simply never a requirement that the trial judge

be required to step aside because of his involvement in

legitimate pretrial proceedings. (Opinion Court of Mili-

tary Appeals, p. 3). The same court in another case an-

nounced a different rule. In U.S. v. Bradley, 7 M.J. 332

(CMA 1979), the trial judge accepted a guilty plea after

a providency hearing. The case was not resolved but had

to be tried, and was tried, by the same judge. This same

6

Court of Military Appeals ruled the judge should not

have tried the case and said at p. 334:

In a case such as this, where the judge not only has

gained detailed knowledge of the factual basis for the

offenses charged but also necessarily has been re-

quired to reach certain conclusions regarding an ac-

cused’s factual and legal guilt and to have manifested

those conclusions by having accepted pleas of guilty

and entering findings of guilt both the fact and the

appearance of “impurity” are presented by the judge’s

continuing to act as the factfinder in the trial.

This simply contradicts the same court’s statement in

this case at p. 4. There is no per se rule that military

judges are disqualified whenever, after accepting guilty

pleas, they must later reject those pleas based on unfore-

seen circumstances. The Court of Military Appeals did

not use this case as an occasion to overrule Bradley. In-

stead it adopted an opinion inconsistent with its own

prior decision. The evident confusion evidenced by the

Court of Military Appeals on this point shows the need

for guidance from this Court.

The Court might further consider that this case should

be taken because the injustice suffered by this defend-

ant is the result of a process decried by other courts.

There is a divergence of judicial opinion on this mat-

ter. It is to be noted first that no one contends that

each and every involvement by the trial judge in pre-

trial proceedings should result in his disqualification.

This is also true of plea bargains, where available, or

plea providency hearings. The question is whether there

is any level or type of pretrial involvement, as was pres-

ent in this case, which is excessive. We submit there

was too much done by the trial judge before trial and

that he was exposed to matters so prejudicial that it was

objectively unreasonable for him to proceed. Particu-

larly applicable is the statement relied upon in Bradley

from U.S. v. Walker, 473 F.2nd 1386, 138 that even “the

disciplined judicial mind should not be subjected to any

7

unnecessary strain; even the most austere intellect has a

subconscious.” As spelled out more precisely by the Army

Court of Military Review in United States v. Peterson,

23 M.J. 828 (ACMR 1986), following Bradley, the Court

found the standard to be applied was objective. “The

test is whether a reasonable person who knew all the

facts would question (the Judge’s) impartiality.” Note

the test is not whether the Judge was in fact impartial,

but whether the impartiality is reasonably subject to

question. Surely, in this case the record at the very least

raises a serious question about the Judge’s appearance

of impartiality. Here the Judge rejected a plea on the

ground that the last element of the offense was uncer-

tain, thereby clearly having already accepted all the

other elements as certain and true.

To spell out the two opposing views, it is instructive

to recall the fanciful metaphor dredged up by the Air

Force Court of Military Review and repeated by the

Court of Military Review. Federal judges, it was said,

have bathtub minds. Pull the plug and everything drains

out. The metaphor is necessary to justify the result in

this case. No one thinks a judge actually forgets what

he has previously heard. It is only when one is distracted

by the image of the emptied tub that one can forget that

the reality is the living, thinking human being on the

bench. The need of the Courts below to justify their de-

cisions on the basis of fanciful imagery demonstrates the

flimsiness of their decisions. It also shows the need for

this Court to establish a more firm standard.

A case cited by the Court of Military Appeals stated

the following:

There may be of course, cases in which factual ad-

missions made during the plea providence inquiry,

or the compelling nature of evidence presented prior

to any withdrawal of the plea, are such as to impel

~ the judge to be convicted of the accused’s guilt and

mentally unable to make an impartial decision.

8

United States v. Melton, 1 M.J. 528 (AFCMKR 1975) at

p. 530-31, see CMR decision at p. 5-6. But both the Air

Force Court in that case and the Courts below in this

case left this matter to the unfettered discretion of the

trial judge.

This Court decided in Merchison above, that there are

instances when the involvement of the judge in pretrial

activity was too great and could not be permitted. This

Court decided that reliance on the discretion of the trial

court judge insufficient in that case. Other courts have

drawn the line on such involvement, but not consistently.

We suggest the following standards in summary, should

be the law:

A judge can obtain too much information prior to

trial for him to be able to be and to appear to be im-

partial at trial.

A judge can be exposed to evidence both too compelling

and too prejudicial prior to trial for him to be and to

appear to be impartial at trial.

Both of these standards are not to be left to the dis-

cretion of the trial judge alone but are subject to re-

view on the basis of whether a reasonable person who

knew all the facts would question the judge’s impartiality.

The Court below then applied the wrong standard. It

relies upon “the discretion of the judge.” (ibid.), not “the

sound discretion of the trial judge.” (The same Court in

Bradley, at p. 333.) The difference is crucial and clear.

The former standard admits of no defined limitations;

the latter acknowledges that some limits upon judicial

discretion do exist. No judge should be required to walk

a mental tightrope along the straight line of the evidence

at the trial when the gravity of the inadmissible evidence

heard in a prior hearing and his own definite conclusions

must weigh upon him so heavily to one side. Proper bal-

ance is improbable. Bias against the defendant is so

likely, that no evidentiary proceeding afterward, however

9

free of error and however balanced, can be trustworthy.

A reasonable man must doubt that the verdict was un-

tainted. That should be all that is required for reversal.

This standard was adopted by Congress for all Fed-

eral Judges in 1974 in 28 USC, par. 455 (1974), which

reads in pertinent part:

455. Disqualification of justice, judge, or magistrate

(a) Any justice, judge, or magistrate of the United

States shall disqualify himself in any proceeding in

which his impartiality might reasonably be questioned.

We submit that this is the proper standard and not the

standard of leaving the matter to the unreviewable dis-

cretion of the trial judge. This Court is uniquely situated

to promulgate this standard universally by accepting this

petition.

II. A MAJOR SAFEGUARD DESIGNED TO PREVENT

IMPROVIDENT GUILTY PLEAS CAN AND DID

MATERIALLY OBSTRUCT A FAIR AND IMPAR-

TIAL TRIAL.

The Rules for Court Martial in Section 910 established

a procedure for dealing with guilty pleas, and where

available, plea bargains. (Not all the Armed Services

allow plea bargains. The Air Force does not). It is simi-

lar in purpose though differing in content from Rule 11

of the Federal Rules of Criminal Procedure. The judge

must make inquiry of the voluntary nature of the plea

and the awareness of the nature of his admissions by the

defendant as well as informing him of what rights he

is giving up by entering a guilty plea. This rule, no less

than Rule 11, is the source of substantial problems. The

judge will inevitably learn that the defendant admits

something. The more meticulous, thorough, and detailed

the hearing, the more tainted will be any subsequent trial

of the matter. In this case the judge did not merely ask

the defendant the requisite minimum to establish the

10

requirements for acceptance of the plea. He guided the

defendant through a detailed description of the events, a

recitation of each and every contact of the defendant

with the deceased, its duration and manner. Defense

counsel had informed the judge the defendant wished to

demonstrate his remorse by entering a plea. Twice dur-

ing his description of his son’s death defendant “broke

down” in the reporter’s description, thus confirming to

all his “remorse”. Remorse is a combination of guilt and

sorrow. Both the description and its manner left a burn-

ing picture of defendant-petitioner’s guilt. None of that

was admissible evidence under the privilege against self-

incrimination, but all of it was heard because of the

requirements of Rule 910.

This case provides an opportunity for the court to cau-

tion against excessive detail in disclosures in a plea

hearing, against inflammatory or emotionally compelling

demonstrations in such hearings, and against receiving

constitutionally or legally inadmissible evidence in them.

If judges are forwarned that such matters are to be

avoided, they may better assure the integrity of the

process. In the rare case where the judge deems it ap-

propriate to delve very deeply into the facts of the case

in the interests of justice, the law provides a remedy,

recusal from the subsequent trial if by judge alone.

Without such a rule, the process for safeguarding against

improvident pleas does itself become a means for under-

mining the integrity of the judicial process.

Ill. THE FAILURE OF THE TRIAL JUDGE TO CON-

SIDER RECUSAL AND TO MAKE A RECORD OF

SUCH CONSIDERATION CONSTITUTED ERROR

IN ITSELF.

The American Bar Association’s Canons of Judicial

Conduct were developed in cooperation with the Judiciary.

They have been followed and approved by many courts.

The Court of Military Appeals even cited part of the

relevant canon in its decision, at p. 4:

ieee)

11

See also Canon 3.C.(1) (a), ABA Code of Judicial

Conduct (1989 edition) (‘A judge should disqualify

himself in a proceeding in which his impartiality

might reasonably be questioned... .

That the trial judge must always consider recusal is

not a new rule. It was followed before the above Canon

was formalized. The first case found on point in the

civilian courts was U.S. v. Gallington, 488 F.2d 637 where

the court said at p. 639:

After rejecting a plea under these circumstances, a

judge may excuse himself from further involvement

in the case and should give serious consideration to

doing so. See, ALI Model Code, supra at 12-113;

President’s Commission on Law Enforcement and

Administration of Justice, The Challenge of Crime in

a Free Society 136 (1967); President’s Commission

on Law Enforcement and Administration of Justice,

Task Force Report: The Courts 13 (1967). See also,

Brown v. Peyton, 485 F.2d 13859 (4th Cir. 1970)

(Winter, J. Dissenting). (emphasis supplied)

All civilian courts which have addressed the subject

agree. In U.S. v. Le Frere, 553 F.Supp. 133, the judge

wrote at p. 135:

Even courts that do not believe a recusal is manda-

tory have noted that a judge should give serious con-

sideration to recusing from further involvement in

a case where he has seen the presentence report.

Lyon, Supra, 588 F.2d at 583. They have conceded

that it is “preferable” to avoid having the same judge

try the case.

Accord U.S. v. Montecalvo, 545 F.2d 684, U.S. v. Lyon,

588 F.2d 581, U.S. v. Sonderup, 639 F.2d 294.

The record in this case affirmatively establishes that

the trial judge gave no consideration to recusal. Instead

he peremptorily turned to the business of the trial. In

rejecting the plea of Petitioner Hugh K. Winter, the

Court said:

12

MJ: Okay. I tell you what I’m going to do, Air-

man Anthony, I’m going to reject your plea, and I’m |

going to enter a plea of not guilty on your behalf and

require the United States to prove your guilt to me

beyond a reasonable doubt, if they can.

MJ: Are you prepared to go tomorrow?

TC: Iam prepared to go tomorrow, yes.

MJ: All right. You prepared to go tomorrow, sir?

DC: Yes, your honor.

Note that the judge addressed the defendants-petitioner

by the name of his deceased son, seven week old Anthony

Winter. We will later suggest that this is only one sign

that the judge must have been profoundly affected by

the content of the plea providency hearing. He was evi-

dently not able to address or even think about the possi-

bility of recusal.

The Court of Military Appeals has failed to enforce, or

even recognize, the requirement of consideration of re-

cusal which is acknowledged as mandatory by many

other courts. Acceptance of this petition will allow this

court to resolve this inconsistency and to establish the

proper rule.

IV. THE JUDGE SHOULD HAVE RECUSED HIMSELF

BECAUSE HE HAD FORMED A FIRM OPINION

ON KEY ELEMENTS OF THE CASE.

In the plea providency hearing the judge, after first

informing the defendant of his rights and ascertaining

that his plea was voluntary, conducted a detailed in-

quiry into the facts of the case. He divided the par-

ticular offense into its four elements and inquired into

each in turn. Only after he was fully satisfied concern-

ing each element did he move on to the next. He was

satisfied that the first three elements were true and

inquired of the fourth, namely, intent or state of mind.

On this he found grounds for doubt and therefore he

rejected the plea. This last element was the only element

on which the plea offered did differ from the offense

eens aeeiine ae

13

charged. The judge was therefore convinced of the truth

of three of the four elements of the petitioner’s case.

The Court of Military Appeals would require the judge

to recuse himself if he had formed an intractible opinion

as to the defendant’s guilt, that is under all elements of

the crime. Here three, but not all four, of the elements

as outlined by the judge were found satisfactorily proved

in the hearing and the judge, but for his reservations

on the last element, was ready to convict. The trial was

therefore merely an exercise with respect to all elements

but the last if the judge was truly convinced of the truth

of the first three. The prosecutor’s burden had been

reduced from proving all elements of the offense charged

to proving but one. Surely fairness is not merely tech-

nical. Bradley would require recusal if a formal finding

of guilt had been signed. The formality of a written

finding is only one manifestation of the mind of the

judge. The actual determinations in this case were no

less real and no less clear.

Indeed, the record indicates that the judge had made up

his mind. There had been an earlier incident mentioned

by the defendant when the child had been shaken.

The judge even framed a conclusion about the earlier

incident.

But, now, would you agree that shaking a baby se-

verely enough to in essence knock him out, which is

what happened in the first place, I suspect, would

exceed the normal barriers of parental touching? I

mean parents should not touch children in the way as

to cause them to lose consciousness. Would you agree

with that? (R. 41. Emphasis supplied).

This and other remarks along with the judge’s neces-

sary formation of conclusions about every fact concern-

ing the crime alleged, in order to fulfill the purpose of

14

the providency hearing, make it clear that the Judge was

convinced of the defendant’s guilt before the trial! began.

This case gives the Court an opportunity to clarify

whether a judge should be disqualified only when he has

made a formal finding of guilt, has formed an intractible

conclusion of guilt, or when the judge has formed or

manifested a belief as to the truth of one or more essen-

tial elements of the offense charged.

Vv. UPON CONCLUDING THE PLEA PROVIDENCY

HEARING, IT WAS ERROR FOR THE JUDGE NOT

TO REOPEN THE QUESTION OF DEFENDANTS

RIGHT TO A TRIAL BY PANEL OF MEMBERS.

The Court of Military Appeals itself acknowledged

in its last footnote to its opinion, that is, in its last word

on this case that:

There is one lingering question that is: should the

military judge be required, as a matter of law, to

ask the accused whether he or she desires to continue

to be tried by military judge alone after the military

judge rejects an accused’s plea? Art. 16(1)(B),

Uniform Code of Military Justice, 10 USC 816(1)

(B); RCMK 903, Manual Supra. (p. 8, Emphasis

added )

Clearly the judge not only failed to raise the matter

but preemptorily foreclosed it by directing the case to

trial.

The Air Force Court of Military Review phrased

the matter even more strongly, at p. 4 of its decision:

The military judge should have explained Winter’s

options when he rejected the plea.

Surely, this principle finds meaningful application here.

Petitioner’s election of trial without a panel occurred

before his plea to a lesser charge. It occurred before he

or his counsel could know the nature and extent of the

plea hearing. The election was no longer valid because

it was not informed of events which occurred before trial

eee

15

which would make the impartiality of the trial proceed-

ings susptec. The election of forum should have been

reconsidered at that time.

The Air Force Court of Military Review gave three

reasons why such error might in this case be dismissed

as harmless (at p. 4):

(1) the government independently proved all facts

that Winter had admitted during the providence in-

quiry; (2) the government had always intended to

proceed to trial on the charged offense, even if the

pleas to the lesser included offense had been accepted ;

and (8) the military judge is entitled to the presump-

tion that he performed his sworn duties properly. See

Article 59(a), UCMJ.

These are patent rationalizations.

1) Whether the government proved all necessary facts

beyond a reasonable doubt is a question no reviewing

court may determine. Once the trial forum is tainted,

no level of proof is sufficient. We submit furthermore

that the proof was not sufficient at trial.

2) That the government always intended to proceed to

trie! does not address the matter of the propriety of

the forum. Trial could still be had before a panel.

3) The presumption of proper performance of the

judge is nothing other than unfettered discretion in other

terms, no standards at all.

If a judge should reopen the question of convening a

panel, and his failure to do so is admitted error by the

AFCMR, then such failure must be reversible error to

have meaning at.all. Choice of forum is fundamental,

and irreversible, not like an evidentiary ruling where

facts may be succeptible of proof in another way. There

is no cure for such an error, so the error must be fatal.

This case gives this Court the opportunity to rule that

the requirement that the reopening of the question of

choice of trial by judge or by jury or panel after a

plea hearing is mandatory, not merely discretionary.

16

VI. THE ONUS FOR THE PROVISION OF AN IMPAR-

TIAL FORUM IS ON THE JUDGE, NOT THE

DEFENDANT.

Both the federal statute on judicial impartiality and

the ABA Canon of Judicial Conduct recited above are

requirements directed at the Judge alone. They do not

require a motion or other request by any party. The

judge must himself assure the integrity of the forum.

None of the cases cited above on recusal or mandatory

consideration of recusal require that those matters first

be raised by motion of defendant before they are re-

viewable issues. The Court of Military Appeals there-

fore ignored the proper question and skirted the real

issue when at p. 8 in footnote 6, in reference to reopen-

ing the question of trial by panel, the court made as its

last comment.

While this is clearly the preferred practice, we also

mention that nothing prevented defense counsel from

requesting this relief. See n.4, supra. Therefore, we

decline at this time to hold that the failure of a mili-

tary judge to discuss this option with an accused con-

stituted reversible error.

In accepting this Petition the Court can establish firmly

that the responsibility for establishing chat a fair forum

is maintained for trial is quintessentially that of the

judge, and not dependent on the actions of the defendant.

VII. THE DECISION OF THE COURT OF MILITARY —

APPEALS DEMONSTRATES THAT THE TRIAL

PROCESS WAS HOPELESSLY CORRUPTED.

We have argued that the emotional and compelling

nature of the facts of this case and of the proceedings

in the trial court, especially the plea providency hear-

ing, are s° mesmerizing that no one could be exposed to

them without such profound effect; that it is unreason-

able to expect anyone who heard or read the transcript

of the plea providency hearing to shut it out of his mind

and consider the question of guilt on the basis of the trial

evidence alone; and that anyone who is familiar with the

17

providency hearing is extraordinarily likely to consider

the trial evidence in a light supplemented by the testi-

mony of the prior hearing. The opinion of the Court of

Military Appeals establishes, verifies, and indeed em-

bodies this reality.

In footnote 1 the Court of Military Appeals recites the

facts of the case (emphasis supplied) :

‘Evidence presented at trial indicated the infant’s

death resulted from what is commonly referred to as

“Shaken Infant Syndrome” (the shaking of a small

child to the point that injury results). During the

providence inquiry, appellant admitted he had shaken

the baby to try to end constant crying brought on by

two maladies—colic and thrush, both of which caused

the baby considerable discomfort. At trial, a forensic

pathologhist concluded that the baby had been shaken

and that action led to injuries which were the cause

of death. An autopsy reveaied injury to the infant’s

brain, several minor bruises to the head and scalp,

retinal hemorrhages, and optic-nerve-sheath damage.

Even the United States Court of Military Appeals, so

far removed from the hearing and trial, could not in-

sulate itself from the revelations in the hearing in re-

citing the relevant facts of the record. This lapsus

linguae is more revealing than the convolutions that

Court’s arguments described. With the issue precisely

framed before it of the need to assure that the case be

adjudged on the trial evidence alone and not at all by

admissions in the providency hearing and with months

to formulate its opinion, the reviewing Court resorted to

evidence from the hearing to demonstrate the propriety

of the result. How much more difficult must it have been

for the trial judge who lived through the hearing only

a few hours before trial to separate the one from the

other.

This case illustrates that the procedural protections re-

lied on by our judiciary are not merely theoretical nice-

ties. The record in the trial of this case contains no

evidence whatsoever that the defendant violently shook

18

the deceased. The only evidence of shaking was that of

a Deputy Sheriff who took statements from the defend-

ant after the incident. The Deputy Sheriff’s version of

the defendant’s actions were anything but violent: “.

the baby went limp. He attempted to shake the baby to

revive him, gave it a warm bath to try to revive it’

(R. 80 and again at R. 81, (emphasis supplied).

A: He just said that he held it by the trunk of the

body under the arms and shook the baby (hoiding his

arms at chest level, witness indicated a slight shaking

motion with his hands.)

This defendant was convicted by the evidence of the

providency hearing, not of the trial. His appeal was

rejected on the same evidence. This gross injustice alone

justifies granting Review.

VIII. THIS COURT SHOULD DIRECT LOWER COURTS’

PROCEEDINGS SO THAT THEY COMPLY WITH

MINIMUM STANDARDS.

In McNabb v. United States, 318 U.S. 332, 87 L. Ed.

819, 63 S. Ct. 608, at p. 340, Mr. Justice Frankfurter

observed that in that case, as perhaps in this case it was:

unnecessary to reach the Constitutional issue presesd

upon us. For, while the power of this Court to undo

convictions in state courts is limited to enforcement

of those “fundamental principles of liberty and jus-

tice, Herbert v. Louisiana, 272 U.S. 312, 316, which

are secured by the Fourteenth Amendment, the scope

of our reviewing power over convictions brought here

from the federal courts is not confined to ascertain-

ment of Constitutional validity. Judicial supervision

of the administration of criminal justice in the fed-

eral courts implies the duty of establishing and main-

taining civilized standards of procedure and evidence.

Such standards are not satisfied merely by observance

of those minimal historic safeguards for securing trial

by reasons which are summarized as “due process of

law” and below which we reach what is really trial

by force.

Denier

19

Similarly in Cheff v. Schnackenberger, 384, U.S. 373,

16 L. Ed. 2nd, 86 S.Ct. 1528, the Court exercised simi-

lar supervisory authority over contempt proceedings, at

p. 380.

Therefore, in the exercise of the Courts supervisory

power and under the peculiar power of the federal

courts to revise sentences in contempt cases, we rule

further that sentences exceeding six months for crim-

inal contempt may not be imposed by federal courts

absent a jury trial or waiver thereof.

This case is suitable for the exercise of the Court su-

pervisory power, since the Cheff particularly, the ques-

tions presented here relate to the conduct of federal ju-

dicial proceedings. The fact that this is a military rather

than a civilian matter should no longer be the obstacle it

was once thought to be. One reason, though not the only

reason, is that effective 1984, Congress gave this Court

jurisdiction to review decisions of the Court of Military

Appeals. The power to correct is the power to direct.

If this Court can review and revise any and all judg-

ments of the Military’s highest court, it can provide

direction to all such courts.

This separate basis for a ruling would leave it un-

necessary to address State Courts whose procedures differ

from those in federal forums and indeed differ greatly

one from another.

Many of the questions presented by this case could be

resolved by the exercise of the Court’s supervisory power.

The Court could, upon granting this Petition, establish

extensive requirements for the conduct of pretrial hear-

ings and subsequent trials if it is satisfied after briefs

and argument that these matters have been sufficiently

developed. More readily, the Court might find one or at

most two items worthy of its making mandatory such

as the renewal of the question of whether the defendant

desires a trial by jury or panel after a plea hearing fails

to resolve a case, or whether a judge must consider and

20

make a record of considering recusal at that time. This

case presents an opportunity for correcting an injus-

tice as well as establishing useful precedent.

CONCLUSION

Petitioner’s case is worthy for grant of Certiorari

since it presents several questions which the Court can

clarify for the future. The Court can establish that ex-

cessive exposure to pretrial matters should disqualify a

judge and that this is not a matter for the discretion of

the judge alone. Further, the court can establish particu-

lar procedural requirements and its parameters such as

the requirement of consideration of recusal and a record

thereof after a hearing on a plea, and the need to let a

defendant renew his choice of trial by judge or by panel

or jury at a critical time. Finally, this Court can reaffirm

that the Judge has the non-delegatable duty to assure the

fairness of the forum for trial, and that failure to adhere

to this principle may not be excused by lack of objection

by any party.

Respectfully submitted,

DAVID J. JIVIDEN

Counsel of Record

Captain, United States Air Force

Appellate Defense Division

Air Force Legal Services Agency

Bldg. 5683

Bolling AFB, DC 20832-6128

(202) 767-1562

ROBERT G. PETERSON

EDWARD C. PETERSON

Counsel for Petitioner

39 S. LaSalle Street—Suite 404

Chicago, Illinois 60603

(312) 236-6629

APPENDICES

APPENDIX A

UNITED STATES COURT OF MILITARY APPEALS

No. 66,573

ACM 28660

UNITED STATES,

Appellee

LP

HuGH K. WINTER, Airman U.S. Air Force,

Appellant

Argued March 4, 1992

Decided Aug. 28, 1992

Counsel

For Appellant: Robert G. Peterson ( argued) ; Colonel

Jeffrey R. Owens and Captain Michael D. Burt.

For Appellee: Captain David C. Wesley (argued) ;

Lieutenant Colonel Brenda J. Hollis (on brief); Major

Paul H. Blackwell, Jr.

Military Judge: Miguel A. Pereira.

Opinion of the Court

COX, Judge:

We are asked to decide whether a military judge erred

by proceeding with a bench trial after rejecting an ac-

cused’s proffered guilty pleas. We find no error and

affirm.

(la)

2a

Appellant was charged with the unpremediated mur-

der of his 7-week-old baby son.’ Art. 118, Uniform Code

of Military Justice, 10 USC § 918. He elected to be tried

by a military judge alone and entered pleas of not guilty

to the murder charge; but by exceptions and substitu-

tions, he also entered pleas of guilty to the lesser-included

offense of involuntary manslaughter. Art. 119, UCMJ,

10 USC § 919. Notwithstanding appellant’s pleas, trial

counsel gave notice of intent to prosecute appellant on

the murder charge.

The military judge then conducted an inquiry into the

providence of appellant’s guilty pleas to the lesser of-

fense. United States v. Care, 18 USCMA 535, 40 CMR

247 (1969); RCM 910(e), Manual for Courts-Martial,

United States, 1984. However, appellant failed to satis-

factorily complete the inquiry.* Accordingly, the judge

1 Evidence presented at trial indicated the infant’s death resulted

from what is commonly referred to as “Shaken Infant Syndrome”

(the shawing of a small child to the point that injury results).

During the providence inquiry, appellant admitted he had shaken the

baby to try to end constant crying brought on by two maladies—

colic and thrush, both of which caused the baby considerable dis-

comfort. At trial, a forensic pathologist concluded that the baby

had been shaken and that action led to injuries which were the

cause of death. An autopsy revealed injury to the infant’s brain,

several minor bruises to the head and scalp, retinal hemorrhages,

and optic-nerve-sheath damage.

2 Specifically, the military judge questioned the accused as follows:

MJ: Shaking a baby playfully, playing with a baby and

watching them smile and whatever, that is the proper parental

role and in this respect, a touching would not be unlawful. A

touching is only unlawful when the ofrce applied is done with-

out legal justification or excuse. That is to say, do you believe

that the application of force by you, if it was in the extreme,

was done without legal justification or excuse nad was beyond

this allowable parental touching?

ACC: At the time, sir, no, but after looking back on it,

yes, I would say so now.

The judge believed that appellant had not admitted the wrongful-

ness of the touching, stemming from the assault on the infant. See

3a

rejected the guilty pleas, entered pleas of not guilty for

appellant, and proceeded immediately to trial. Art. 45

(a), UCMJ, 10 USC § 845(a).

The judge warned government counsel not to use any

information elicited during the providence inquiry, except

for impeachment purposes. See United States v. Holt,

27 MJ 57 (CMA 1988). The trial proceeded without ob-

jections by either party, and appellant was convicted as

charged.®

Appellant now contends that the military judge should

have disqualified himself, sua sponte, because of his ex-

posure to admissions which established every element of

the charged offense except the intent to kill or inflict

great bodily harm. Para. 48b(2)(d), Part IV, Manual,

supra. Appellant contends that such knowledge rendered

the judge unable to act as a neutral and detached finder

of fact. We do not agree.

When an accused pleads guilty, he must “be ques-

tioned under cath” as to the accuracy of his pleas. United

States v. Care, supra; RCM 910(e). Should each ques-

tioning raise a “potential defense,” the judge must ex-

plain this defense and reject the pleas if the defense is

not negated. See RCM 910(e), Discussion. Thereafter,

the judge will enter pleas of not guilty, and the Govern-

ment will again bear the burden of proving beyond a

reasonable doubt the offenses for which the not-guilty

pleas were entered.

In the present case, the steps detailed above were fol-

lowed. The miiltary judge rejected appellant’s guilty

_—

para. 44b(2)(c) and (d), Part IV, Manual for Courts-Martial,

United States, 1984.

3 Appellant was sentenced to a dishonorable discharge, confinement

for 12 years, total forfeitures, and reduction to airman basic. The

sentence was approved by the convening authority, and the Court

of Military Review affirmed the findings nad the sentence. 32 MJ

901 (1991).

4a

pleas on appellant’s behalf. Then, the Government pro-

ceeded to prove that appellant murdered his baby son.

Nevertheless, on appeal appellant asserts that, after re-

jecting the pleas, the judge should have disqualified him-

self or convened a panel of members to try appellant.

Clearly, “personal bias” on the part of a judge calls

for that judge’s recusal. United States v. Jarvis, 22

USCMA 260, 262, 46 CMR 260, 262 (1973); see also

Canon 3.C.(1) (a), ABA Code of Judicial Conduct (1989

edition) (“A judge should disqualify himself in a pro-

ceeding in which his impartiality might reasonably be

questioned, including but not limited to instances where:

(a) he has a personal bas or prejudice concerning a

party, or personal knowledge of disputed evidentiary

facts concerning the proceeding; .. .”). However, “gen-

erally there is no restriction on the military judge alone”

trying a case where the judge has found guilty pleas

improvident. United States v. Hodges, 22 USCMA 506,

507, 47 CMR 923, 924 (1973). There is no per se rule

that military judges are disqualified whenever, after ac-

cepting guilty pleas, they must later reject those pleas

based on unforeseen circumstances. Even more so, there

is no invariable requirement that judges sua sponte recuse

themselves in all such cases. United States v. Hodges,

supra; United States v. Kauffman, 3 MJ 794 (ACMR

1977). See also United States v. Thomas, 7 MJ 299

(CMA 1979); cf. United States v. Collins, 6 MJ 256

(CMA 1979).4

4 Further, we do not presume that defense counsel was incompe-

tent in failing to object. Indeed, the record of trial reflects that

defense counsel tactically intended and sought to keep the assigned

military judge. In support, we note that suspicions about the mili-

tary judge arose not from defense counsel, but rather from trial

counsel. Trial counsel knew the military judge had recently pre-

sided over another “baby shaking case.” During trial counsel’s

void dire of the judge, it was further established that the same

defense counsel (Major Burr) served in both cases. The judge

confirmed this and also elaborated about his willingness, if re-

as tae + Wann be etal

5a

We acknowledge, however, that even though a judge

is not per se disqualified from presiding over a bench

trial after rejecting guilty pleas, the facts of a partciular

case may still require recusal of the military judge, es-

pecially if the judge has formed an intractable opinion

as to the guilt of the accused. Cf. United States v.

Bradley, 7 MJ 332 (CMA 1979). Fundamental legal

principles require judges to decide cases based on evi-

dence presented at trial.®

Appellant contends that, in this instance, the judge

heard too much during the guilty-plea inquiry; that as

a rational human being, the judge must have reached

certain conclusions and formed opinions about the case;

and that, to insure fairness and eliminate any appear-

ance of impropriety, the judge should have recused him-

quested, to submit a letter of clemency for the accused in that case.

Therefore, one could conclude that defense counsel knew he had a

favorable forum in which to present a defense.

5 The United States Court of Appeals for the District of Columbia

wrote specifically about the dichotomy and strains placed on a trial

judge as follows:

The District Judge is presumed to have a trained and disci-

plined judicial intellect, which in a nonjury trial can receive

evidence, rule on its admissibility, and discard from his eventual

decision on the merits that evidence which he has ruled to be

inadmissible for the purposes of his decision .

However, that same court also warned:

The disciplined judicial mind should not be subjected to any

unnecessary strain; even the most austere intellect has a sub-

conscious.

United States v. Walker, 473 F.2d 136, 138 (D.C.Cir. 1972). The

strain placed on the minds of jurists is not lightly passed over. We

also acknowledge, per the Court of Military Review’s opinion, the

strain placed on military judges and civilian trial judges in general.

As the Court of Military Review noted in its decision below, trial

judges have “bathtub minds,” or “the ability to fill their heads with

the facts immediately necessary, then pull the plug and scour away

all recollection of the previous matter, before refilling for a new

situation.” 32 MJ at 903, citing Mayer, “Justice, The Law and the

Lawyer,” Saturday Evening Post at 37 (February 26, 1966).

6a

self or at least convened a panel to try the case. United

States v. Cockrell, 49 CMR 567 (ACMR 1974), pet. de-

nied, 23 USCMA 640 (1975) ; cf. United States v. Sher-

rod, 26 MJ 30 (CMA 1988). We do not agree.

First and foremost, it was by his own request that

appellant was tried by military judge alone. Art. 16(1)

(B), UCMJ, 10 USC § 816(1)(B). Moreover, trial coun-

sel had placed defense counsel, the accused, and the mili-

tary judge on notice that he intended to prosecute the

accused for the offense of murder. Thus, the evidence re-

ceived by the military judge at trial was no greater or

lesser than what he would have received if he had ac-

cepted the proffered pleas to involuntary manslaughter

and the Government had proceeded with the trial on the

murder charge. Indeed, it can be argued that appellant

was in a better situation because the military judge re-

jected his pleas based on a possible defense. In any

event, this military judge was not disqualified because

of his participation in the guilty-plea inquiry.

Appellant also contends that even if the judge was not

disqualified he should have impaneled a court-martial of

members. Because we have concluded that the military

judge was not disqualified, this was certainly an option

available to him, but not a requirement. See United

States v. Sherrod, supra at 33.* Both the United States

Army and Air Force Courts of Military Review have

considered whether a per se rule should be established

to govern those instances where an accused has attempted

* There is one lingering question, that is: should the military

judge be required, as a matter of law, to ask the accused whether

he or she desires to continue to be tried by military judge alone

after the military judge rejects an accused’s plea? Art. 16(1)(B),

Uniform Code of Military Justice, 10 USC § 816(1)(B); RCM 903,

Manual, supra. While this is clearly the preferred practice, we also

mention that nothing prevented defense counsel from requesting

this relief. See n. 4, supra. Therefore, we decline at this time to

hold that the failure of a military judge to discuss this option with

an accused constitutes reversible error.

a

Nha.

as nar rp a aaa ath nN cat Bt canal in Ele

Ta

to plead guilty but the pleas have been rejected; yet

neither court has done so. See United States v. Cockrell,

supra; and United States v. Melton, 1 MJ 528 (AFCMR

1975), pet. denied, 2 MJ 159 (1976).

The Army Court of Military Review invited an ac-

cused to challenge the military judge for cause if the

accused believes that the judge has formed any opinion

of guilt based upon the information he gained in the

providence inquiry. United States v. Cockrell, supra at

973. Indeed, that court required the judge to “recuse

himself . . . if he has any doubt as to his ability to render

justice to either side.” Jd. Lastly, that court expressed

a preference for having the military judge recuse him-

self unless the accused expressly consents to having him

continue as the military judge. Id. at 574.

The Air Force Court of Military Review viewed the

situated as less critical and declined an invitation by

appellate defense counsel to adopt the Army’s more for-

malistic approach. However, the bottom line remains

the same. Senior Judge Roberts stated:

[W]e believe that the matter of recusal . . . is best

left to the independent judgment of the military

judge involved. There may be, of course, cases in

which factual admissions made during the plea

providence inquiry, or the compelling nature of evi-

dence presented prior to any withdrawal of the plea,

are such as to impel the judge to be convinced of the

accused’s guilt and mentally unable to make an im-

partial decision. If that is the case, it is for him to

decide whether the better course of action -would be

to remove himself from further participation. Simi-

larly, he may conclude that he might properly con-

duct the trial but that in the interest of fairness

and impartiality, the accused should be permitted

to withdraw his request for trial by military judge

alone. In the alternative the judge may, on his own

motion, direct that the case be tried before a mili-

8a

tary jury. United States v. Cockrell, supra; Umted

States v. Bryant, 283 USCMA 326, 49 CMR 660

(1975).

United States v. Melton, supra at 530-31. This view of

the law comports with our own. See United States v.

Sherrod, supra at 33.

We are satisfied that this appellant received a fair and

impartial trial and that the findings were based upon

legally competent evidence of record.

The decision of the United States Air Force Court of

Military Review is affirmed.

Chief Judge SULLIVAN and Judges CRAWFORD,

GIERKE, and WISS concur.

9a

APPENDIX B

UNITED STATES AIR FORCE

COURT OF MILITARY REVIEW

ACM 28660

UNITED STATES

ve

AIRMAN HuGH K. WINTER, FR 497-80-1673

UNITED STATES AIR FoRCE

29 March 1991

Sentence adjudged 12 April 1990 by GCM con-

vened at Cannon Air Force Base, New Mexico.

Military Judge: Miguel A. Pereira (sitting

alone).

Approved sentence: Dishonorable discharge,

confinement for twelve (12) years, total for-

feiture of all pay and allowances and reduc-

tion to E-1.

Appellate Counsel for the Appellant: Captain Michael

D. Burt (argued); Colonel Richard F. O’Hair, Lieu-

tenant Colonel Jeffrey R. Owens, and Major Ronald G.

Morgan (on brief).

Appellate Counsel for the United States: Major Mor-

ris D. Davis (argued); Colonel Joe R. Lamport, Lieu-

tenant Colonel Brenda J. Hollis, Major Paul H. Black-

well, Jr., and Major Leonard R. Rippey (on brief).

10a

Before

LEONARD, RIVES, and JAMES

Appellate Military Judges

OPINION OF THE COURT

RIVES, Judge:

When he rejected a guilty plea after receiving admis-

sions from the accused, did the judge err by proceeding

with a bench trial? Lacking direct evidence, did the

government nonetheless prove that the appellant mur-

dered his infant son by violent, repetitive shaking? When

a mannequin’s head flew off during the government’s

courtroom demonstration, did that so inflame the judge

as to deny the appellant a fair trial? These are among

the many questions presented in this case. We conclude

that no prejudicial error was committed.

Airman Hugh Winter was convicted of the unpre-

meditated murder of his infant son, in violation of

Article 118, UCMJ. The convening authority approved

the adjudged sentence: a dishonorable discharge, con-

finement for 12 years, total forfeiture of all pay and

allowances, and reduction to E-1.

I

In this trial by judge alone, Winter entered pleas of

guilty to the lesser included offense of involuntary man-

slaughter in violation of Article 119. During the provi-

dence inquiry into the guilty pleas,’ he admitted every

element of the charged offense under Article 118, other

than having an intent to kill or inflict great bodily harm.

Ultimately, the military judge rejected the pleas. He

entered pleas of not guilty on Winter’s behalf and pro-

ceeded immediately to trial.

1 United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969) ;

R.C.M. 910(e).

oe ie ice eect gi

eh air te Th bi stew

nT aE Rite Cs tates 6

a ee ene ee ene OPO Ty

lla

On our initial review of the record, we were con-

cerned with the propriety of this procedure, and we spec-

ified the following issue:

WHETHER THE MILITARY JUDGE ERRED BY

CONTINUING TO SIT AS FACT FINDER AFTER

CONDUCTING A PROVIDENCY INQUIRY AND

REJECTING THE PLEA?

Before Winter elected trial by judge alone, the military

judge was questioned extensively by the trial counsel

concerning the judge’s service as trial judge in an un-

related case tried recently at .the same base. That case

had also involved the death of an infant, allegedly caused

in a manner similar to that suffered by Winter’s son.

Trial counsel was concerned about some post-trial com-

ments allegedly made by the judge, which possibly indi-

cated disagreement with the verdict returned by the

members. The judge had also offered to provide a clem-

ency recommendation to the convening authority. Neither

the trial counsel nor the defense counsel challenged the

military judge for cause. The judge carefully explained

these matters before granting Winter’s request for trial

by judge alone.

The trial counsel informed the judge that the govern-

ment intended to proceed with proof of the charged

offense despite Winter’s pleas to the lesser included

offense. The parties did not agree to a stipulation of fact.

During the providence inquiry, Winter made admis-

sions to the elements of proof for involuntary man-

slaughter. While reviewing the elements for a second

time, the judge expressed concern that Winter seemed

not to accept the wrongfulness of his conduct. When

specifically asked again whether he knew his actions were

wrong at the time he applied force to his child, Winter

stated, “At the time, sir, no, but looking back on it, yes,

I would say so now.”

12a

The military judge raised the possible defense of mis-

take of fact concerning the wrongfulness of the touching

that had occurred. After colloquy between the judge, both

counsel, and the accused, the judge announced that he

was rejecting the pleas. He also stated that he would

preclude the prosecution from using any information

elicited during the providences inquiry (except possibly

for purposes of impeachment). See United States v.

Holt, 27 M.J. 57 (C.M.A. 1988). He reminded the par-

ties that the government had the burden of proving all

elements of the offense. Neither trial counsel nor defense

counsel voiced any concerns or objections.

When the guilty plea was disapproved, the military

judge should have considered the following options: (1)

recusing himself from further participuation in the trial;

(2) offering the accused the option to withdraw his re-

quest for trial by judge alone; (3) directing that trial

proceed with members; or (4) continuing to serve as

military judge. DA Pamphlet 27-173, Trial Procedure,

paragraph 27-4b (20 April 1990). Here, the parties

simply proceeded with the trial. No one discussed the

propriety of continuing the bench trial after the judge

had received admissions from Winter and then rejected

his pleas. No one discussed the impact of that decision

on Winter’s choice of forum.

Recusal of the trial judge under these circumstances is

not mandatory. United States v. Melton, 1 M.J. 528

(A.F.C.M.R. 1975). The decision rests in the discretion

of the judge. United States v. Haynes, 29 M.J. 610

(A.C.M.R. 1988); United States v. Kauffman, 3 M..,

794 (A.C.M.R. 1977). When the judge, as here, does not

recuse himself, he must ignore matters that are not prop-

erly before the court. This is not a new principle, nor

2 When a plea is rejected after findings, it will normally be nec-

essary for the judge to recuse himself in a bench trial. R.C.M.

910(h)(2), Discussion; United States v. Peterson, 23 M.J. 828

(A.C.M.R. 1986).

13a

is it unique to this situation. A judge must frequently

disregard irrelevant matters from deliberations.

Recently, we reviewed a case that involved a request

_ for trial by judge alone. The prior day, the same judge

had tried a co-actor on similar charges in a bench trial.

Explaining the situation to the accused, Judge Donald

E. Weir stated:

I will preside over this case based solely on the evi-

dence presented to the court in this case and without

reference to the preceding case. This military judge

takes his oath seriously. That is what I am required

to do. That is what I will do. A wise observation

from one of our appellate brothers in this area was

made some months ago describing the duty of a mili-

tary judge as being like taking a judicial bath.*

Once the case is over, you pull the plug from the

drain and all the evidentiary water goes down the

drain in that case. You then move on to another

case and the bathtub is again filled with all the evi-

dentiary water in that case and this court will have

absolutely no difficulty in basing any decision and

reaching any findings it has to reach based solely

on the evidence adduced at this court and without

reference to the preceding case.

Although these points were not articulated in this case,

we will defer to the presumption that a military judge

knows the law and performs his duties properly. United

States v. Stein, 20 U.S.C.M.A., 518, 519, 43 C.M.R. 358,

359 (1971); United States v. Phillipson, 30 M.J. 1019

3 The reference was contained in an unpublished, Per Curiam

decision of this Court. In that case, we referred to an insight from

Judge Learned Hand, who commended trial judges for their “bath-

tub minds;” i.e., the ability to fill their heads with the facts im-

mediately necessary, then pull the plug and scour away all recollec-

tion of the previous matter, before refilling for a new situation.

See Mayer, “Justice, The Law and the Lawyer,” Saturday Evening

Post, February 26, 1966, p. 37.

14a

(A.F.C.M.R. 1990); United States v. Long, 20 M.J. 657

(N.M.C.M.R. 1985).

Careful reading of the record of trial supports the

conclusion that this trial judge ignored matters brought

out during the providence inquiry. United States v. Cahn,

31 M.J. 729 (A.F.C.M.R. 1990); cf. United States v.

Shackeiford, 2 M.J. 17 (C.M.A. 1976) (which resulted in

a reversal where the military judge used information

gained in a rejected providence inquiry to ask a number

of questions in front of the court members).

The military judge should have explained Winter’s op-

tions when he rejected the plea. However, his failure to

do so does not amount to prejudicial error, since: (1)

the government independently proved all facts that Win-

ter had admitted during the providence inquiry; (2) the

government had always intended to proceed to trial on

the charged offense, even if the pleas to the lesser in-

cluded offense had been accepted; and (3) the military

judge is entitled to the presumption that he performed

his sworn duties properly. See Article 59(a), UCMJ.

II

In his first assigned error, the appellant challenges the

factual sufficiency of the evidence to support the murder

conviction. The threshold issue is whether the evidence

proves that Winter caused the injuries that resulted in

his son’s death; if so, the question becomes whether he

acted with the requisite intent to kill or inflict great

bodily harm.

A

Winter’s son, Tony, was born on 18 August 1989. In

late September of that year, the infant was taken to the

hospital emergency room, pu~portedly because of a slight

fever and vomiting. Winter also mentioned that he had

been bouncing Tony on his knee, about six inches off

his leg, when the baby “landed wrong” and “went semi-

15a

limp” for “about 30 seconds.” Based on an examination

and the information provided by his parents, Tony was

given medication and released. When the symptoms per-

sisted the next day, he was again taken to the doctor.

Tony was admitted to the hospital for three days of ob-

servation. At the end of the hospital stay, the doctors

thought he had colic and thrush, and released him to his

parents.

On 7 October 1989, Winter was alone with his baby

while his wife was having her hair cut. He Says he was

feeding Tony when the baby coughed and spit up a bit

of formula. He began to burp the baby, but then, as he

described in a statement to the police, the baby:

went limp (had no muscle control). I panicked be-

cause I had no idea what was going on. I shook him

(I can’t remember how hard I shook him but I had

never shaken Tony hard) and he didn’t wake up....

The infant did not respond, and Winter began to wash

him in the sink, a process that had helped to revive the

baby when he “went semi-limp” in late September. Winter

eventually called his wife at the beauty shop. She rushed

home and they took Tony to the hospital. Efforts to

revive the baby failed.

Winter’s 7-week old son was a victim of “shaken in-

fant syndrome.” His death resulted from “a massive

subdural hemorrhage and cerebral edema;” i.e., swelling

of the brain caused by shaking. The injuries were de-

scribed as severe, including tearing of veins, bleeding on

the surface of the brain, retinal hemorrhaging and optic

nerve sheath damage, all evidence of very forceful shak-

ing. Expert testimony established that repetitive shaking

and a great amount of force would have been necessary

to cause the injuries. The witnesses testified that no

reasonable person would have used such violent force

against an infant without understanding the harm that

could be caused.

16a

In retrospect, the physicians opined that all of the

symptoms the baby had in late September were consist-

ent with an infant who had survived a severe shaking.

The routine diagnosis given at the time was based, to a

large degree, on information provided by the parents.

The possibility of a shaking injury had not been raised.

According to the experts, a fall to the knee (as Winter

had described) could not have caused the injuries, nor

could gentle shaking or throwing the infant into the air

and catching him. Severe, violent force was required.

The autopsy revealed two hemorrhages, one causing death

and the other about two weeks old. Concerning the sec-

ond, fatal shaking episode, testimony established that a

loss of consciousness would have resulted shortly after

the shaking injuries were sustained. The baby’s death

was conclusively caused by shaking. We are convinced

that Winter inflicted the fatal injuries.

Testimony was clear that the second shaking injury

was deadly. That shaking was so traumatic that the

baby lost consciousness very quickly. Through his pretrial

statement to the police, it is clear that Winter was alone

with his son during this period of time. Although he says

that he was merely feeding Tony when the baby went

limp, the evidence shows that Winter must have shaken

his baby with great force and violence, causing the fatal

injuries. We are satisfied beyond reasonable doubt that

Winter inflicted the injuries that caused his son’s death.

Article 66(¢c), UCMJ.

B

We now cons'*+r whether the Government proved that

Winter intendec co kill or inflict great bodily harm upon

his infant son.* The defense urges the record merely

4 Under the facts of this case, Winter’s conviction can only be

sustained under Article 118(2), which provides that a person is

guilty of murder when he “intends to kill or inflict great bodily

harm.” A person is guilty of murder under Article 118(3) when

17a

shows that Winter was a 19-year-old, inexperienced

father who lacked child-rearing skills. The defense asks:

What was his motive for killing his child? and, Couldn’t

the shaking injuries have been caused by his efforts to

revive Tony when he choked on something?

The intent to kill or inflict great bodily harm may

be established through circumstantial evidence. United

States v. Littlehales, 19 M.J. 512, 516 (A.F.C.M.R. 1984),

affirmed, 22 M.J. 17 (C.M.A. 1986), cert. denied, 476

U.S. 1174 (1986). At issue is whether “the evidence

was of such a nature as to exclude every reasonable

hypothesis except that of the accused’s guilt.” Jd. The

Manual for Courts-Martial provides:

An unlawful killing without premeditation is also

murder when the accused had either an intent to

kill or inflict great bodily harm. It may be in-

ferred that a person intends the natural and prob-

able consequences of an act purposely done. Hence,

if a person does an intentional act likely to result in

death or great bodily injury, it may be inferred that

death or great bodily injury was intended.

MCM, Part IV, paragraph 48¢(8)(a) (1984); see also

United States v. Owens, 21 M.J. 117, 126 (C.M.A. 1985).

The prosecution clearly established that Tony’s death

was caused by forceful, repetitive shaking. The fatal

injuries were not imposed by accident, and the baby did

not suffer the assaults on just one occasion. See United

States v. Curry, 31 M.J. 359, 872 (C.M.A. 1990).

he “is engaged in an act which is inherently dangerous to others

and evinces a wanton disregard of human life.” In United States

v. Berg, 31 M.J. 38 (C.M.A. 1990), the Court of Military Appeals

made it clear that Article 118(3) requires that the accused’s con-

duct must involve danger to more than one person. Following the

precedent of Berg, Winter’s conviction cannot rest under Article

118(3), since his actions were “inherently dangerous” to only a

single person, his son Tony.

il as

18a

We are satisfied that Winter understood the harm that

could be caused by the violent force he employed against

his infant son. He intentionally shook Toney with lethal

force. He is culpable under Article 118(2) for the death

that resulted. We are convinced of the appellant’s guilt

beyond a reasonable doubt. United States v. Turner, 25

M.J. 324, 324-825 (C.M.A. 1987).

Iil

The appellant next alleges that the military judge erred

by allowing an expert witness to engage in an inflam-

matory demonstration with a mannequin. The witness

was describing the amount of force necessary to inflict

the fatal injuries sustained by Tony Winter. As an aid,

he forcefully shook a doll normally used to demonstrate

cardiopulmonary resuscitation techniques.

The relevant testimony and courtroom demonstration

are recounted vividly in the record:

WIT: It would require forces that we describe

as severe or violent to cause those kind of damages.

It would take things that would be well beyond

rough activity with the child and again get in the

severe violent range and it would look something

like this; very common way to hold it is at the

chest or perhaps by the arms and it would look

like this:

(Holding the doll under the arms, the witness very

violently shook the doll, to the extent the doll’s head

snapped back and forth and then broke loose and

flew from the body.)

WIT: (After a period of silence.) It would be

repetitive.

MJ: Counsel, how about retrieving the head?

(Trial counsel picked the doll’s head up and recon-

nected it to the doll’s body. )

MJ: The head wouldn’t fly off, would it, since it

was attached to the neck?

19a

WIT: That’s correct.

MJ: All right.

TC: Your honor, I apologize for that. This was

worked on to ensure that nothing like this would

happen.

MJ: That’s fine. It’s not a duplication; it’s

merely an attempt to illustrate.

The demonstration was intended to show the amount

of force necessary to cause the fatal injuries to Tony,

and to help establish Winter’s intent when he shook the

infant. The government used the demonstration as an

aid to prove the charged offense (as opposed to any lesser

included offense), and also to show that the injuries

could not have been inadvertently inflicted.

We find that the demonstration had evidentiary value,

assisting the trier of fact to understand expert testimony

on a relevant issue. United States v. Thomas, 6 U.S.C.M.A.

92, 19 C.M.R. 218 (1955). The probative value of the

evidence outweighs any inflammatory impact, which was

unintended in any event. Mil. R. Evid. 403; United

States v. Pjecha, 7 M.J. 455 (C.M.A. 1979). Neither the

government nor the witness expected the mannequin’s

head to break loose. The incident did not improperly in-

fluence the military judge; the appellant suffered no un-

fair prejudice from the demonstration.

The other assigned errors are resolved adversely to the

appellant. We have also specifically considered the mat-

ters raised by the appellant under United States v,

Grostefon, 12 M.J. 431 (C.M.A. 1982) and find them

without merit.

The findings and sentence are correct in law and fact

and, on the basis of the entire record, are

AFFIRMED.

20a

Senior Judge LEONARD and Judge JAMES concur.

OFFICIAL

[SEAL]

/s/ Laura L. Green

LAURA L. GREEN

Documents Examiner

Court of Military Review

2la

APPENDIX C

UNITED STATES COURT OF MILITARY APPEALS

USCMA Dkt. No. 66573/AF

CMR Dkt. No. 28660

UNITED STATES,

Appellee

V.

HuGH K. WINTER (497-80-1673),

Appellant

MANDATE

TO THE JUDGE ADVOCATE GENERAL, UNITED

STATES AIR FORCE:

In the above-styled cause heard by the Court on March

4, 1992, it is, by the Court, this 29th day of September,

1992,

ORDERED:

That the decision of the United States Air Force Court

of Military Review is affirmed. 35 MJ 93 (CMA 1992).

For the Court,

/s/ John A. Cutts, III

JOHN A. CuTTs, III

Deputy Clerk of the Court

[SEAL]

Ww ou. s. covernmentr PRINTING OFFICE; 1992 336029 70007