We don’t usually cover unpublished opinions, but yesterday’s NMCCA ruling in United States v. Hayes is remarkable. United States v. Hayes, No. NMCCA 200600910 (N-M. Ct. Crim. App. Oct. 28, 2010).
The military judge in the case was LtCol Meeks, who appears to be the judge NMCCA most likes to reverse. The case involves Judge Meeks’ comments during a post-trial bridging the gap session in a case involving same-sex sex acts resulting in an indecent acts conviction.
In 2009, CAAF summarily set aside NMCCA’s second decision in this oft-reversed case. United States v. Hayes, 68 M.J. 190 (C.A.A.F. 2009). (We discussed that ruling at length here.) CAAF granted review of this issue: “WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED WHEN IT FOUND THAT APPELLANT WAS NOT DENIED HIS RIGHT TO A FAIR TRIAL DESPITE THE MILITARY JUDGE’S (1)EXHIBITION OF BIAS, AFTER TRIAL, IN ANNOUNCING HIS PERSONAL DISTASTE FOR BOTH HOMOSEXUALITY AND APPELLANT; AND (2) HIS EXHIBITION OF PARTIALITY, DURING TRIAL, BY ADVISING THE GOVERNMENT ON TRIAL TACTICS.” CAAF ordered further factfinding. NMCCA then ordered a DuBay hearing concerning what was said at the post-trial bridging the gap session.
In yesterday’s opinion, written by Chief Judge Reismeier for a unanimous panel, NMCCA held that “the military judge’s post-trial comments, taken in context of the entire record, would lead a reasonable person to question the military judge’s impartiality.” The court therefore set aside the sentence while authorizing a new sentencing hearing.
NMCCA explains: “The appellant was charged with forcible sodomy, but, pursuant to a pretrial agreement, pleaded guilty to indecent acts with another based on sexual contact with another service member in the physical presence of a third party. The appellant, his partner, and the third party were all males.”
During the post-trial bridging the gap session, the military judge said that “Marines should not be required
to live in the barracks with people like Seaman Hayes,” and that “homosexuality has no place in our Armed Forces.” NMCCA continues, “The post-trial discussion occurred in the context of the military judge noting that this case was very much like one might see in a sexual assault case involving an intoxicated female who is unable to resist being taken advantage of. He further noted that with two male service members, there were no policies in place to safeguard males, such as requirements that the doors be left ajar, orders that they not have sex in rooms, and ‘barriers’ and protections in place ‘because of the nature of interactions between men and women.'” The military judge also opined that there was a rational basis for the Don’t Ask, Don’t Tell policy and that “homosexual acts are incompatible with the service.” The military judge explained that “homosexual conduct presented leadership challenges, as males are not generally as cautious in thinking about dangerous situations as females would be, providing homosexual males a continuing opportunity to take advantage of other males.”
Relying solely on the appearance of bias rationale for judicial disqualification, NMCCA concluded that it could not “accept the impression of prejudice [the military judge’s] language created.” The court reasoned:
A reference to “people like Seaman Hayes” is, in best light, injudicious when uttered in the same conversation as a statement that “homosexuality has no place in our Armed Forces.” Even if the reference to “people like Seaman Hayes” was intended to address sexual predators, it conveys to an impartial listener an entirely different meaning when followed by a reference to “homosexuality having no place in our Armed Forces.” Indeed, the prominently-placed “our” in the second phrase has a tendency to create in the mind of a listener an image of a speaker who thinks that “people like” the appellant are not like “us,” and that the service belongs to “us” and “our people,” not to “people like” the appellant. Added to this impression is the military judge’s apparent – and stated – belief that the inclusion in military barracks of Sailors and Marines who engage in homosexual acts will create a danger of an increased rate of sexual assaults therein — a “leadership” challenge, as he put it. The statement of a jurist, during the context of a discussion about a specific case involving a homosexual act, that allowing homosexuals into the barracks would lead to increased instances of homosexual assaults, even if intended otherwise, conveys a belief that homosexuals pose a risk to sleeping heterosexuals who leave their doors unlocked.
More gravely, the timing of the statements suggests that the military judge held these views while presidingover this case and failed to compartmentalize them from his judicial conduct. The military judge testified at the DuBay hearing, in December 2009, that his intent during the post-trial debrief was to convey that homosexual conduct, not homosexuality in general, has no place in the Armed Forces. In the context of this entire record of trial, this explanation includes the unfortunate inference that he believed, at the time of trial and at the time of adjudging a punitive discharge, that homosexual conduct should lead to a discharge, even if that conclusion was not his actual intent. The perception that a military judge has predetermined a certain punishment for a certain act or crime is, simply, unacceptable. We do not reach the question of whether the military judge was actually biased, as our conclusion would remain unchanged regardless of the conclusion we reached. His statements, in context, create in the mind of a reasonable person observing the proceedings a serious question as to the legality and fairness of the court.
Id., slip op. at 7-8 (footnotes omitted).
The court concluded that setting aside the sentence was the appropriate remedy. In the course of that discussion, NMCCA also criticized Judge Meeks for deliberating just 7 minutes in a case with 121 pages of documentary evidence admitted during the sentencing hearing. Id., slip op. at 10 n.7.