UNITED STATES, Appellee 

v. 

Kevin L. McILWAIN, Specialist 

U.S. Army, Appellant 

No. 07-0544 

Crim. App. No. 20040095 

United States Court of Appeals for the Armed Forces

Argued February 5, 2008 

Decided May 21, 2008 

STUCKY, J., delivered the opinion of the Court, in which EFFRON, 

C.J., and ERDMANN, J., joined. RYAN, J., filed a dissenting 

opinion, in which BAKER, J., joined. BAKER, J., also filed a 

separate dissenting opinion. 

Counsel

For Appellant: Captain Shay Stanford (argued); Colonel 

Christopher J. O’Brien, Lieutenant Colonel Steven C. Henricks, 

and Major Teresa L. Raymond (on brief); Major Sean Mangan and 

Captain Edward G. Bahdi. 

For Appellee: Captain Nicole L. Fish (argued); Colonel John W. 

Miller II, Major Elizabeth G. Marotta, and Captain Larry W. 

Downend (on brief). 

Military Judge: Robin L. Hall 

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

2

Judge STUCKY delivered the opinion of the Court. 

We granted Appellant’s petition for review to determine if 

the military judge abused her discretion by denying the defense 

motion to recuse herself after declaring that her participation 

in companion cases “would suggest to an impartial person looking 

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

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

and reverse. 

I. 

Appellant was convicted of rape, forcible sodomy, and 

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

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

Court members sentenced him to a bad-conduct discharge, 

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

allowances, and reduction to the lowest enlisted grade. 

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

judge disclosed that she had presided over the companion cases 

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

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

had entered mixed pleas. 

The military judge told Appellant that she would recuse 

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

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

despite sitting on the companion cases, she had neither decided 
United States v. McIlwain, No. 07-0544/AR 

3

any issue nor developed any opinions relating to Appellant’s 

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

explained that PVT Williams’s providence inquiry had implicated 

Appellant because PVT Williams had pled to indecent assault “as 

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

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

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

military judge told trial defense counsel the following: 

But I did hear a bunch about Specialist Williams 

[sic]1

 at the trial Monday, Tuesday, and Wednesday of 

this week, so if your client desires to go with a 

judge alone, then I would not sit; I would recuse 

myself. If your client decides to go with a panel of 

either all officers or officers and enlisted members, 

then I’m comfortable that I will be able to 

objectively instruct the members, rule on objections, 

and that sort of thing, because my role is different. 

After the military judge disclosed that she would be 

comfortable presiding over a members trial, Appellant elected to 

be tried before officer and enlisted members. Nevertheless, he 

asked the military judge to recuse herself. She denied the 

recusal request and again told Appellant that if he chose a 

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

decisions favorable to Appellant in terms of assessing 

 

1

 Both parties agree the military judge was talking about 

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

4

witness credibility. Those decisions “would suggest to an 

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

case.” 

II. 

 “An accused has a constitutional right to an impartial 

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

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

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

parties have waived disqualification of the military judge after 

full disclosure of the basis for disqualification, a military 

judge must recuse herself “in any proceeding in which that 

military judge’s impartiality might reasonably be questioned.” 

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

Whether the military judge should disqualify herself is 

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

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

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

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

should “broadly construe” possible reasons for disqualification, 

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

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

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

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

M.J. 87, 90 (C.A.A.F. 2001). 
United States v. McIlwain, No. 07-0544/AR 

5

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

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

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

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

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

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

responsible for ensuring that a fair trial is conducted.” 

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

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

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

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

The judge has broad discretion in carrying out 

this responsibility, including the authority to 

call and question witnesses, hold sessions 

outside the presence of members, govern the order 

and manner of testimony and argument, control 

voir dire, rule on the admissibility of evidence 

and interlocutory questions, exercise contempt 

power to control the proceedings, and, in a bench 

trial, adjudge findings and sentence. 

Id. In these roles: 

The impartiality of a presiding judge is crucial, 

for “‘[t]he influence of the trial judge on the 

jury is necessarily and properly of great 

weight,’ . . . and jurors are ever watchful of 

the words that fall from him. Particularly in a 

criminal trial, the judge’s last word is apt to 

be the decisive word.” 

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

(C.M.A. 1976)). 
United States v. McIlwain, No. 07-0544/AR 

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We commend the military judge for her candor in fully 

disclosing her participation in the companion cases and her 

sensitivity to the public’s perceptions of the military justice 

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

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

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

recuse himself after sitting on two companion cases and making 

decisions in those cases regarding suppression motions). 

However, once the military judge performed the analysis required 

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

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

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

impartiality. Every time she ruled on evidence, asked 

questions, responded to member questions, or determined 

instructions, the military judge exercised her discretion, a 

discretion that she admitted an impartial person would conclude 

had not been exercised in an impartial manner.2

 Therefore, she 

was disqualified and abused her discretion by continuing to sit 

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

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

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

 

2

 This is not a case like Butcher, where the ground for 

disqualification arose when the case was almost finished. 56 

M.J. at 92. 

3

 Having explicitly made the R.C.M. 902(a) determination in favor 

of disqualification, the military judge also removed herself 
United States v. McIlwain, No. 07-0544/AR 

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III. 

This Court has recognized that not every judicial 

disqualification error requires reversal and has adopted the 

standards the Supreme Court announced in Liljeberg v. Health 

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

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

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

three-part Liljeberg test looks at: 

(1) the risk of injustice to the parties, 

(2) the risk that the denial of relief will produce 

injustice in other cases, and 

(3) the risk of undermining public confidence in the 

judicial process. 

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

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

warranted in this case. 

 The risk of injustice to the parties is high when a 

military judge who has stated her bias nonetheless presides over 

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

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

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

 

from the middle category of cases in Sherrod, where we stated we 

would not ordinarily substitute our judgment for that of the 

military judge. 26 M.J. at 33. Furthermore, although the 

military judge’s disclosure follows the procedure outlined in 

United States v. Campos, 42 M.J. 253, 262 (C.A.A.F. 1995), see

United States v. McIlwain, __ M.J. __ (2-3, 4) (C.A.A.F. 2008) 

(Ryan, J., joined by Baker, J., dissenting), our review as to 

whether R.C.M. 902(a) requires disqualification does not end 
United States v. McIlwain, No. 07-0544/AR 

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

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

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

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

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

risk of undermining the public’s confidence in the judicial 

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

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

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

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

produce a corrosive impact on public confidence in the military 

justice system. “‘The guiding consideration is that the 

administration of justice should reasonably appear to be 

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

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

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

chambers). 

IV. 

The decision of the United States Army Court of Criminal 

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

The record is returned to the Judge Advocate General of the 

Army. A rehearing may be ordered. 

 

with the fact of the military judge’s disclosure. The substance 

of the disclosure is also critical to our inquiry. 
United States v. McIlwain, No. 07-0544/AR 

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

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

regarding her subjective belief concerning the thoughts others 

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

been the military judge in companion cases warrants reversal in 

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

companion case alone is a basis for disqualification under Rule 

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

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

disqualification claim where the military judge had disclosed 

presiding over a companion case before the accused opted for a 

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

points out, the majority effectively creates a per se rule 

against military judges sitting on companion cases. United 

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

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

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

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

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

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

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

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

Court, because the military judge was transparent and disclosed 

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

2

counsel’s responsibility to “present evidence regarding a 

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

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

(stating that an allegation must be supported by facts or 

probative evidence warranting a reasonable inference of 

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

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

recusal especially where, as here, the record discloses nothing 

that shows Appellant was prejudiced by her failure to recuse 

herself. 

 Even assuming the military judge did err, application of 

the factors outlined in Liljeberg v. Health Services Acquisition 

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

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

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

disclosing any prejudice to Appellant, and the only hypothetical 

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

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

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

judge shall disqualify himself or herself in any proceeding in 

which that military judge’s impartiality might reasonably be 

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

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

military judge’s impartiality is presumed. See United States v.
United States v. McIlwain, No. 07-0544/AR 

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

military judge discloses a possible basis for recusal does not 

require disqualification under the rule: 

We have emphasized that “where the military judge 

makes full disclosure on the record and affirmatively 

disclaims any impact on him, where the defense has 

full opportunity to voir dire the military judge and 

to present evidence on the question, and where such 

record demonstrates that appellant obviously was not 

prejudiced by the military judge’s not recusing 

himself, the concerns of R.C.M. 902(a) are fully met.” 

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

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

Disqualification based solely upon appearances is 

exceptional, and involvement in a companion case does not 

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

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

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

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

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

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

military judge’s judicial involvement in a companion case and 

concluding that involvement in a companion case alone is not 

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

 

 

1 Parenteau v. Jacobson, 586 N.E.2d 15 (Mass. App. Ct. 1993), and 

Walberg v. Israel, 766 F.2d 1071 (7th Cir. 1985), cited in the 

granted issue are inapposite. In Parenteau, the judge abused 

his discretion by subordinating concerns about bias to judicial 
United States v. McIlwain, No. 07-0544/AR 

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

she had been involved in two companion cases, questioned whether 

an impartial person might suspect her impartiality if she served 

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

that she would recuse herself and get another military judge if 

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

complied with the procedure outlined in Norfleet and Campos. 

Trial defense counsel had every opportunity to further voir dire 

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

the record demonstrates no prejudice to Appellant from the 

military judge’s denial of his recusal motion. 

The majority nonetheless holds that the military judge’s 

statement is the basis for finding that she abused her 

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

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

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

 

economy. 586 N.E.2d at 18. Further, the Parenteau record was 

replete with facts showing a reason to question the judge’s 

impartiality, not least of which was the judge’s statement that 

he had previously assessed the appellant’s credibility and 

determined “he was one of the biggest liars that I’d seen in a 

long time.” Id. at 17. Walberg was an ineffective assistance 

of counsel case, not a disqualification case in which, 

similarly, the record showed the judge was so outwardly hostile 

towards the appellant that during the suppression hearing he 

answered the appellant’s questions before the appellant to 

demonstrate the predictability of his answers and implied in 

open court that the appellant was unworthy of the attorney’s 

efforts on his behalf. 766 F.2d at 1073, 1077. 
United States v. McIlwain, No. 07-0544/AR 

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

questions, responded to member questions, or determined 

instructions, the military judge exercised her discretion, a 

discretion that she admitted an impartial person would conclude 

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

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

support the conclusion that the military judge’s decisions 

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

Appellant was prejudiced in any way. 

Instead, the majority appears to rest its decision solely 

on the military judge’s gratuitous statement about what people 

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

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

authority for the proposition that this conjecture alone 

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

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

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

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

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

dissenting). 

Since nothing in the record would lead a reasonable person 

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

heard a companion case is, as a matter of law, alone not enough 
United States v. McIlwain, No. 07-0544/AR 

6

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

judge did not abuse her discretion. 

B. If Error, No Prejudice 

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

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

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

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

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

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

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

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

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

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

or public confidence were subjected to an increased risk of harm 

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

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

There is no showing of injustice to Appellant. 

Traditionally, this Court has undertaken a record-intensive 

analysis in weighing the first Liljeberg factor in order to find 

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

the record to determine the risk of injustice based on the 

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

226 (examining the record in determining whether military 

judge’s questions reflected a personal bias against the 
United States v. McIlwain, No. 07-0544/AR 

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

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

military judge who has stated her bias nonetheless presides over 

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

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

to the facts of this case. 

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

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

might assume she did because she presided over two companion 

cases. Therefore, she advised Appellant during his forum 

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

recuse herself and get another military judge in order to avoid 

the perception that any ruling she made on witness credibility 

in the earlier companion cases might be perceived as favorable 

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

distance between the military judge’s statement and the 

reasoning of the majority on this point is marked. 

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

not argue that his forum election was tainted by the military 

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

been different had the military judge recused herself. Finally, 

neither Appellant nor the majority point to a single ruling, 

comment, or fact at trial indicating the military judge 

demonstrated bias or was prejudicial to Appellant. The absence 
United States v. McIlwain, No. 07-0544/AR 

8

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

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

first Liljeberg factor weighs in favor of reversal. 

I agree with the majority that the second Liljeberg factor 

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

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

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

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

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

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

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

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

something beyond error is required for reversal in any 

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

M.J. at 92. 

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

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

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

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

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

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

partiality towards either party in the conduct of the trial, 

that the findings and sentence were entered by a panel of 

members, and that the only bias expressed by the military judge 
United States v. McIlwain, No. 07-0544/AR 

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was possibly in favor of Appellant. 

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

BAKER, Judge (dissenting): 

The majority misreads the military judge’s statement. In 

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

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

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

military judge should and would be disqualified in all companion 

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

wish to make several additional points. 

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

record: 

As I said, if you wanted to go with a judge, then I would 

not be comfortable sitting on your case because I feel that 

I’ve made decisions, frankly, probably favorable to you in 

terms of credibility of witnesses but, nevertheless, 

decisions that would suggest to an impartial person looking 

in that I can’t be impartial in this case. 

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

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

objective observer might reach that conclusion if she sat as 

judge alone. 

Nonetheless, the majority focuses exclusively on the last 

clause of this statement, without addressing the essential 

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

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

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

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

2

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

judge alone or with members. That conclusion is ineluctable, 

because there is no other way to distinguish this case from 

every other companion-case circumstance involving a military 

judge who has made decisions. The majority asserts otherwise, 

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

required in this case. 

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

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

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

on companion cases provided they can do so impartially. In 

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

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

rather than a contextual rule of recusal. 

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

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

to address the possible impact on judicial resources if military 

judges in fact recuse themselves from every companion case in 

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

majority commends the military judge for her candor in fully 

disclosing her participation in the companion cases by taking 

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

future military judges might well adopt the safer course of 

silence. Rather than encouraging candor and the sort of 
United States v. McIlwain, No. 07-0544/AR 

3

thinking out loud that permits parties to make informed 

decisions subject to informed appellate review, the legal policy 

message to military judges would appear to be keep your mouth 

closed until you are prepared to speak in the declaratory 

sentences of factual findings and conclusions of law. 

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

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

along with the dissents on the integrity of the military justice 

system.