In this unpublished opinion released today in United States v. Sanders, No. 201200202 (N-M.Ct.Crim.App. November 13, 2012), the NMCCA finds that:

A reasonable person made aware of the post-trial comments by the military judge in this case may well conclude that they are indicative of bias since they depart from the neutral and detached posture that trial judges must always maintain.

Slip op. at 4. The post-trial comments made by the military judge occurred about three months after the Appellant was convicted pursuant to his pleas, by the military judge sitting as a special court-martial, of knowingly using an interactive computer service in interstate commerce to transmit obscene matters in violation of Article 134, UCMJ. He was sentenced to confinement for 12 months, reduction to pay grade E-1, and a bad-conduct discharge (a pretrial agreement limited punishment only to the special court-martial jurisdictional maximum).

The comments were made during a “professional military education” event for junior officers who were law students serving active duty during their summer break.The CCA summarized the comments in this paragraph:

During the PME, the military judge made various statements not in keeping with standards of judicial decorum. Two of the law students in attendance were concerned with the military judge’s comments and prepared statements reporting that the military judge referred to defendants as “scumbags,” made statements that Congress and the Commandant of the Marine Corps wanted more convictions, and that trial counsel should assume the defendant is guilty. Moreover, pertinent to the facts of this appeal, one law student wrote that the military judge, “said that if you are trial council [sic] and prosecuting a child pornography defendent [sic] and he gets off because of your incompetence you will go to hell;” but further adds that “I think he was trying to be humorous with this comment because he chuckled when he said it.”

Slip op. at 2-3. The CCA assumes, without deciding, that the judge exhibited post-trial bias. However, the court finds no prejudice, reasoning:

There is no risk of injustice to the appellant in this case. The environment in which the military judge was speaking was unrelated to the appellant’s trial. It was a training environment, consisting of young officers still attending law school. While the comments are not what we would expect of a sitting judge (even if from the pleadings it appears to be pure embellishment), the statements made by the military judge occurred more than three months after the trial and more than one month after the CA’s action. Moreover, the comments did not specifically reference the appellant or the appellant’s case. They were directed more toward the performance of Government counsel than toward any other party, to include an accused. . . .

Even assuming the military judge’s comments about a trial counsel’s failure to successfully prosecute a child porn case demonstrates a bias against an accused, there is still no risk of injustice in his case. The fact that a judge has strong feelings about a particular crime does not automatically disqualify him from sentencing those who commit that crime.

Likewise, our finding of no prejudice in this case presents no risk of injustice in other cases. That nexus simply does not exist here. We have held that the military judge’s comments were error and evidence of an apparent bias. Other appellants remain free to show a prejudicial nexus to their own case.

Finally, our decision will not undermine the public’s confidence in the judicial process. This appellant made a provident plea of guilty, after freely negotiating a pretrial agreement with the Government and receiving the jurisdictional protections of a lower forum. Furthermore, he received clemency from the CA, a highly discretionary act that shows the appellant was treated fairly.

Slip op. at 4-5 (citations omitted). In a footnote, the CCA “find[s] no basis to compel additional fact-finding at a DuBay hearing.” Slip op. at 4, N.4.

8 Responses to “NMCCA assumes post-trial judicial bias, finds no prejudicial error”

  1. Bill C says:

    Yes, this is what the Military Justice system needs. Judges who make disparaging comments like this to law students.  That will make people think the system is fair.

  2. Charlie Gittins says:

    Who was the judge?

  3. Charlie Gittins says:

    Never mind . . .   I just read the opinion.  Palmer.  

  4. Cloudesley Shovell says:

    Am I the only one disturbed by the fact that a law student and military officer cannot manage to spell counsel and defendant correctly?

  5. John Harwood says:

    Please, please tell me that TJAG removed this judge from the bench?

  6. Phil Cave says:

    John, rumour has it that the chief judge Navy trial judiciary did that.

    The MJ’s views were not unknown.  I think he may have had a pretty high percentage of members trials. 

  7. Peter McLaughlin says:

    Sigh.  Can’t Marine Corps military judges keep the ego in check?

  8. John Harwood says:

    Thanks for the info, Phil.  As a practical matter, they had to pull him from the bench.  I think ever afterwards, it would be IAC if a trial defense counsel didn’t aggressively voir dire the judge on his views and ask him to recuse himself from the trial.  The good news, I guess, is that this MJ can now go back to being an SJA advising convening authorities on matters such as defense witness requests, RILOs, clemency matters, etc.  I’m sure he’ll be advising his CA to give them all the weight and consideration they’re due.