This opinion is subject to revision before publication 

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

_______________ 

UNITED STATES 

Appellee 

v. 

Andrew P. WITT, Senior Airman 

United States Air Force, Appellant 

No. 15-0260 

Crim. App. No. 36785 

Argued April 26, 2016—Decided July 19, 2016 

Military Judge: W. Thomas Cumbie 

For Appellant: Brian L. Mizer, Esq. (argued); Major Daniel 

E. Schoeni and Major Thomas A. Smith (on brief). 

For Appellee: Gerald R. Bruce, Esq. (argued); Colonel Martin J. Hindel, Colonel Katherine E. Oler, Lieutenant Colonel Nurit Anderson, Lieutenant Colonel Roberto Ramirez, 

Major Matthew J. Neil, and Major Gary M. Osborn (on 

brief). 

 Judge STUCKY delivered the opinion of the Court, in 

which Chief Judge ERDMANN, Judges RYAN and 

OHLSON, and Senior Judge COX, joined. 

_______________ 

Judge STUCKY delivered the opinion of the Court. 

Sitting en banc, the United States Air Force Court of 

Criminal Appeals (CCA) set aside Appellant’s death sentence. At the Government’s request, the CCA reconsidered, 

again sitting en banc, and affirmed the death sentence. The 

case is before us for mandatory review pursuant to Article 

67(a)(1), Uniform Code of Military Justice (UCMJ), 

10 U.S.C. § 867(a)(1) (2012). 

As a preliminary matter, we specified two issues: 

(1) whether the CCA, sitting en banc, had authority to reconsider a previous en banc decision; and, (2) whether it 

could do so when the composition of the en banc court had 

changed. We hold that the CCA had authority to reconsider 

its previous en banc decision, even though the composition of 

the court changed, but that any judge present for duty at the 

time the first opinion issued who did not participate in that 
United States v. Witt, No. Docket No. 15-0260/AF 

Opinion of the Court 

2 

decision was disqualified from later participation in the 

case. 

I. Procedural History 

A general court-martial convicted Appellant of the attempted premeditated murder of Senior Airman (SrA) Jason 

King and the premeditated murders of SrA Andrew 

Schliepsiek and his wife Jamie Schliepsiek. Articles 80 and 

118, Uniform Code Military Justice (UCMJ), 10 U.S.C. 

§§ 880, 918 (2012). On October 13, 2005, the court sentenced 

Appellant to death. The convening authority approved the 

findings and sentence as adjudged. 

The CCA, sitting en banc,1 affirmed the findings but set 

aside the sentence and ordered a rehearing, holding Appellant’s defense counsel constitutionally ineffective for failing 

to investigate certain mitigating evidence. United States v. 

Witt (Witt I), 72 M.J. 727, 758–66 (A.F. Ct. Crim. App. 2013) 

(en banc). The Government moved for reconsideration and 

reconsideration en banc, which was granted. United States 

v. Witt (Witt II), 73 M.J. 738, 753 (A.F. Ct. Crim. App. 2014) 

(recon) (en banc). On reconsideration, the CCA held that the 

trial defense counsel’s defective performance did not result 

in prejudice and affirmed the approved findings and sentence. Id. at 825. 

II. En Banc CCA May Reconsider Its En Banc Decision 

Appellant argues that Article 66(a) and precedent from 

this Court prohibit a CCA from reconsidering an en banc 

opinion. They do not. 

As originally enacted, Article 66(a), UCMJ, provided that 

“the Judge Advocate General of each of the armed forces 

shall constitute in his office one or more boards of review, 

each composed of not less than three officers or civilians.” 

Act of May 5, 1950, ch. 169, Pub. L. No. 81-506, 64 Stat. 107, 

128 (Article 66(a)). The Judge Advocates General were required to “prescribe uniform rules of procedure for proceedings in and before the boards of review.” 64 Stat. at 129. 

 1 The Government argued that this first sitting was not en 

banc. We reject this contention. The record clearly indicates that it 

was. 
United States v. Witt, No. Docket No. 15-0260/AF 

Opinion of the Court 

3 

The Court of Military Appeals (CMA) noted that “The 

boards of review were separate and relatively autonomous; 

they were not constituents of a larger consolidated entity.” 

United States v. Chilcote, 20 C.M.A. 283, 285, 43 C.M.R. 123, 

125 (1971). Each board of review had the inherent authority 

to reconsider its own opinion. See United States v. Henderson, 52 M.J. 14, 20 (C.A.A.F. 1999) (citing United States v. 

Sparks, 5 C.M.A. 453, 18 C.M.R. 77 (1955); United States v. 

Corbin, 3 C.M.A. 99, 11 C.M.R. 99 (1953); United States v. 

Reeves, 1 C.M.A. 388, 3 C.M.R. 122 (1952)). 

As part of the Military Justice Act of 1968, Congress 

amended Article 66(a) to replace the “one or more boards of 

review” with one court that could sit in panels or en banc “in 

accordance with the [uniform] rules [of procedure] prescribed” by the Judge Advocates General.2 Pub. L. No. 90-

632, 82 Stat. 1335, 1341 (1965); see Article 66(f), UCMJ. Despite this amendment, the CMA held that Article 66 did not 

permit en banc reconsideration of a panel decision and the 

uniform rules were “not an independent grant of substance 

that would broaden the authority contained in Article 66(a).” 

Chilcote, 20 C.M.A. at 286, 43 C.M.R. at 126. 

Article 66(a) was amended again by the Military Justice 

Act of 1983, Pub. L. No. 98-209, 97 Stat. 1393 (1983), “to 

specifically overrule the Chilcote decision.” Henderson, 52 

M.J. at 20; see United States v. Flowers, 26 M.J. 463, 464 

(C.M.A. 1988). The amendment provided for reconsideration 

of a panel decision by the court sitting as a whole. Henderson, 52 M.J. at 20. 

In Henderson, the question before this Court was whether, in light of the 1983 amendment, a panel could reconsider 

its own opinion or reconsideration was limited to the court 

sitting as a whole. 52 M.J. at 19. We held that a panel was 

still authorized to reconsider its own decision. Id. at 20. Citing the uniform rules of the Judge Advocates General, we 

noted: “Reconsideration of a decision by a Court of Criminal 

Appeals is provided for without regard to whether it is sitting as a panel or as a whole.” Id. (citing CCAs R. 4, 17, 19). 

 2 Now known as the Courts of Criminal Appeals Rules of Practice and Procedure (CCAs R.). 
United States v. Witt, No. Docket No. 15-0260/AF 

Opinion of the Court 

4 

Appellant correctly argues that the CCAs are courts of 

limited jurisdiction, that neither the plain language of Article 66 nor its legislative history provides for en banc reconsideration of an en banc opinion, and that the uniform rules 

prescribed by the JAGs cannot confer jurisdiction on the 

CCAs. However, these arguments miss the point. 

As we have held continuously since the UCMJ was enacted, military appellate courts have the inherent authority 

to reconsider their own decisions. See id.; United States v. 

Kraffa, 11 M.J. 453, 455 (C.M.A. 1981) (at least “until the 

possibility of reconsideration is removed”); United States v. 

Jackson, 2 C.M.A. 179, 182, 7 C.M.R. 55, 58 (1953) (stating 

that this Court wishes “to avoid a position which might operate to deprive a military service of full opportunity to correct the errors of its own tribunals”); Reeves, 1 C.M.A. at 

390–91, 3 C.M.R. at 124–25 (stating that the boards of review “should have the right to correct clerical errors, inadvertently entered decisions, and those decisions which are 

clearly wrong as a matter of law”). The CCAs Rules are not 

the basis for this conclusion, although they are consistent 

with it. Henderson, 52 M.J. at 19 (stating that the uniform 

rules prescribed by the Judge Advocates General pursuant 

to Article 66(f) provided for reconsideration “without regard 

to whether [the CCA] is sitting as a panel or as a whole”); see

CCAs R. 17(c), 19(b). 

We hold, therefore, that the CCA sitting en banc had the 

authority to reconsider its own decision, consistent with 

CCAs R. 19. 

III. The Reconsidering Court Was Improperly Composed 

A. Background 

The CCA first heard oral argument in this case on October 11, 2012. Witt I was issued ten months later, on August 

9, 2013. Four judges, present for duty on that date, declined 

to participate in Witt I because of their arrival at the CCA 

well after oral argument and conference but shortly before 

the opinion issued. Three of those judges, however, subsequently participated in Witt II.3

 3 Four other judges then present recused themselves because 

of prior involvement with the case. They did not further partici-
United States v. Witt, No. Docket No. 15-0260/AF 

Opinion of the Court 

5 

B. Discussion 

The Code of Conduct for United States Judges (CCUSJ) 

provides: “A judge should hear and decide matters assigned, 

unless disqualified ....”4 Canon 3(A)(2). Although by its own 

terms, the CCUSJ does not apply to this Court or the CCAs,5

we have adopted it. United States v. Butcher, 56 M.J. 87, 91 

(C.A.A.F. 2001); United States v. Quintanilla, 56 M.J. 37, 44 

(C.A.A.F. 2001). The Air Force, however, has not. Instead, it 

adopted a modified version of the American Bar Association’s 1990 Model Code of Judicial Conduct: The Air Force 

Uniform Code of Judicial Conduct (AFUCJC). Dep’t of the 

Air Force, Inst. 51-201, Law, Administration of Military Justice, Attachment 5, pt. I (June 6, 2013) [hereinafter AFI 51-

201]; see Butcher, 56 M.J. at 91 (recognizing the applicability 

of the AFUCJC to Air Force judges). 

An Air Force appellate military judge “shall hear and decide matters assigned to the judge, except those in which 

disqualification is required.” AFI 51-201, AFUCJC R. 3B(1). 

The CCA has not addressed the meaning of AFUCJC R. 

3B(1). Nevertheless, the ABA’s comment on the Model Rule6

that was the basis for AFUCJC R. 3B(1) is consistent with 

both the CCUSJ and the Supreme Court’s view of the duties 

of a judge: Although a judge has a duty not to sit when disqualified, the judge has an equal duty to sit on a case when 

not disqualified. Laird v. Tatum, 409 U.S. 824, 837 (1972). A 

judge who is present for duty does not have the discretion to 

not participate in an assigned case, absent exceptional circumstances not present here. 

 

pate in the case and are not included in the subsequent discussion. 

4 See http://www.uscourts.gov/judges-judgeships/code-conductunited-states-judges (last visited July 12, 2016). 

5 Id. at Introduction. 

6 Arthur H. Garwin et al., Annotated Model Code of Judicial 

Conduct 142–44 (2d ed. 2011). The Model Code was revised and 

reorganized in 2007. The duty to sit now appears in Model Rule 

2.7: “A judge shall hear and decide matters assigned to the judge, 

except when disqualification is required by Rule 2.11 or other 

law.” Id. at 142. 
United States v. Witt, No. Docket No. 15-0260/AF 

Opinion of the Court 

6 

Chief Judge Everett’s opinion in United States v. 

Fimmano, is instructive. 9 M.J. 256 (C.M.A. 1980) (Everett, 

C.J., memorandum opinion). In that and several other cases, 

Chief Judge Everett declined to sit on certain petitions for 

reconsideration which were pending when he joined the 

Court. This Court’s rule on reconsideration at the time was 

totally silent on who could vote on a petition, or whose assent was necessary. See C.MA. R. 29, 4 M.J. cxvi (1977). 

Chief Judge Everett stated, in words of particular relevance 

to the CCAs, that: 

[T]he contention has been voiced that to allow reversal of a decision by the vote of succession judges 

after a petition for rehearing has been submitted 

would injure public confidence in appellate tribunals. Of course, this danger would be heightened if 

... the judges had no fixed tenure on an appellate 

tribunal, so that the power to ... appoint new judges 

would carry with it the power to change the results 

of specific cases.

Fimmano, 9 M.J. at 258 (emphasis added) (citation omitted).7

Such a problem of appearances and public confidence is 

precisely what we have here. CCA R. 17(b) clearly comprehends that all judges not recused will participate in any vote 

on en banc consideration: “The suggestion of a party for consideration or reconsideration by the Court as a whole shall 

be transmitted to each judge of the Court who is present for 

duty ....” Several judges present for duty declined to sit for 

the initial en banc consideration yet sat for reconsideration 

en banc and reversed the original result.8 The Government 

 7 Judge Effron’s opinion in United States v. Gorski, 48 M.J. 

317 (C.A.A.F. 1997) (Effron, J., memorandum opinion), is wholly 

distinguishable. In that case, because of an unguarded remark 

made from the bench during oral argument by another judge, 

Judge Effron was faced with a motion to recuse himself. While the 

motion had no substantive merit, Judge Effron felt that his impartiality might be questioned and therefore recused himself anyway. 

This is clearly much closer to the situation of the judges in the 

present case who recused themselves because of some prior involvement. 

8 One of the judges who declined to participate in the original 

en banc decision was appointed to serve as chief judge for the re-
United States v. Witt, No. Docket No. 15-0260/AF 

Opinion of the Court 

7 

then opposed the defense’s motion to disclose the votes on 

the motion to reconsider and the motion was denied.9 Particularly in the unique context of capital litigation, this is 

exceedingly problematic. 

The refusal of a judge who is present for duty and not 

disqualified to participate amounts to disqualification. Once 

disqualified, the judge is prohibited from further participation in the case.10 See United States v. Roach, 69 M.J. 17, 20 

(C.A.A.F. 2010); see also United States v. Thornton, 69 M.J. 

178, 178 (C.A.A.F. 2010) (summary disposition); Walker v. 

United States, 60 M.J. 354, 358 (C.A.A.F. 2004); Richard E. 

Flamm, Judicial Disqualification: Recusal and Disqualification of Judges § 22.1 (2d ed. 2007). 

In Appellant’s case, three judges who were present for 

duty at the time Witt I issued but did not participate may 

have participated in the vote to reconsider11 and did participate in Witt II. We hold that the failure of these judges to 

participate in Witt I amounted to de facto disqualification 

and, that they were therefore prohibited from further participation in the case.

 

consideration and appears to have participated in the vote to reconsider. 

9 Appellant moved the CCA to disclose the judges who participated in the vote to reconsider and the votes of the individual 

judges. The Government opposed on the grounds that, in the absence of evidence to the contrary, the judges of the CCA are presumed to know and follow the law and disclosure of the votes 

would pierce the veil of the CCA’s deliberative process. We disagree. How a judge votes on a motion to reconsider is not part of the 

deliberative process and is subject to discovery. 

10 We are aware that in a recent case, a justice of the Supreme 

Court recused himself and then returned to participation in the 

case. See American Broadcasting Companies, Inc. v. Aereo, 

Inc., No. 13-461 (Apr. 16, 2014) (docket entry noting justice 

was no longer recused), http://www.supremecourt.gov/search.aspx? 

filename=/docketfiles/13-461.htm. The case cited is clearly a civil 

one, where a simple stock holding or other investment could give 

rise to recusal until it is divested. See 28 U.S.C. § 455(f) (2012). 

That is not the case here. 

11 See supra note 10. 
United States v. Witt, No. Docket No. 15-0260/AF 

Opinion of the Court 

8 

Having found error in the participation of three judges in 

Witt II, we must determine whether the error prejudiced 

Appellant’s substantial rights. Article 59(a), UCMJ, 

10 U.S.C. § 859(a) (2012). In Liljeberg v. Health Services Acquisition Corp., the Supreme Court held that violations of 

28 U.S.C. § 455(a), which concerns the disqualification of 

“[a]ny justice, judge, or magistrate judge of the United 

States,” could be evaluated for harmlessness by examining 

three factors: “the risk of injustice to the parties in the particular case, the risk that the denial of relief will produce 

injustice in other cases, and the risk of undermining the 

public’s confidence in the judicial process.” 486 U.S. 847, 

862, 864 (1988). 

Although CCA judges are not “judges of the United 

States,” we have applied the Liljeberg factors in evaluating 

the participation of recused judges in the military justice 

system.12 See Roach, 69 M.J. at 20–21. In Roach, we found 

the third Liljeberg factor determinative: 

First, public confidence in the military judicial process is undermined where judges act in cases from 

which they are recused. This is true, whether the 

judge’s role is significant or minimal.... [A] military 

judge is recused or he is not. A military judge who 

acts inconsistently with a recusal, no matter how 

minimally, may leave a wider audience to wonder 

whether the military judge lacks the same rigor 

when applying the law. 

Id. 

Consistent with this precedent, we hold that the participation of disqualified judges in the reconsideration process 

produced a significant “risk of undermining the public’s confidence in the judicial process,” Liljeberg, 48 U.S. at 864, and 

thus prejudiced Appellant’s substantial rights. Article 59(a), 

UCMJ. Furthermore, while we are not constructing a rule 

solely for capital litigation, we do note that the error in this 

case resulted in Appellant’s vacated death sentence being 

 12 The terms “disqualification” and “recusal” are closely related. Whereas disqualification refers to the basis for a judge not to 

be able to sit on a case, “recusal” refers to the judge’s refusing to 

sit on grounds of disqualification. Compare Black’s Law Dictionary

573 (10th ed. 2014), with id. at 1467. 
United States v. Witt, No. Docket No. 15-0260/AF 

Opinion of the Court 

9 

affirmed. It is difficult to conceive of a more striking example of prejudice to an appellant’s substantial rights. 

IV. Judgment 

The judgment of the United States Air Force Court of 

Criminal Appeals in Witt II is vacated. The case is returned 

to the Judge Advocate General of the Air Force for remand 

to an appropriate convening authority for a sentence rehearing in accordance with Witt I.