Judicial misconduct by a military judge during an ongoing trial is a very serious and rare event, but there are procedures to address it. If a defense attorney believes the judge has engaged in misconduct—such as showing clear bias against the accused, having improper communications about the case, or failing to follow the law—they must take immediate action on the record to preserve the issue.
The first step is for the attorney to make a formal objection to the judge’s conduct. If the conduct persists, the attorney can make a motion for the judge to recuse themselves from the case. The motion would detail the specific instances of alleged misconduct and argue that the judge can no longer be fair and impartial. If the judge refuses to recuse themselves, the attorney can, in extraordinary circumstances, petition a higher court for a “writ of mandamus” to have the judge removed, though this is very difficult.
If the trial continues and results in a conviction, the judicial misconduct becomes a primary issue for appeal. The appellate defense attorney will argue to the service’s Court of Criminal Appeals that the judge’s misconduct deprived their client of a fair trial. If the appellate court agrees that the misconduct was serious and prejudicial, they have the authority to set aside the conviction and order a completely new trial with a different military judge. This provides a crucial check on the power of the trial judge.