On the third day of this list, my CAAFlog gave to me, a Partington in D.D.C. 

Just kidding.  The case of Partington v. Houck, 840 F.Supp.2d 236 (D.D.C. 2012), currently pending decision by the D.C. Circuit, didn’t make our top-10 list.  But I couldn’t resist that little seasonal ditty.  On to the real number 8:

On the third day of this list, my CAAFlog gave to me, a bad year for the trial judiciary.

2012 certainly saw some triumphant moments for the military trial judiciary — probably none brighter than Navy-Marine Corps Trial Judiciary Chief Judge Daugherty’s ruling that the Commandant of the Marine Corps had made remarks creating the appearance of unlawful command influence, which will be discussed later in the top-10 list. But the military trial judiciary also experienced some setbacks this year.

One major setback for a military judge was self-inflicted.

As NMCCA explained in an unpublished opinion, on 21 June 2012, Marine trial judge Robert G. Palmer “spoke for two hours to five junior Marine Corps officers providing professional military education (PME) regarding the practice of military justice. These officers were law students assigned to various Marine Corps legal offices to work with judge advocates and participate in legal training during their summer recess from law school; some were working for defense, and some for the Government.”  United States v. Sanders, No. NMCCA 201200202, 2012 WL 5492306, at *1 (N-M. Ct. Crim. App. Nov. 13, 2012) (footnotes omitted).  NMCCA describes Judge Palmer’s comments to the summer funners:

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.”

Id. (internal citation omitted).

NMCCA concluded that a “reasonable person made aware of the . . . comments by the military judge . . . may well conclude that they are indicative of bias since they  depart from the neutral and detached posture that trial judges must always  maintain.”  Id. at *2.

While NMCCA declined to grant relief in at least two cases over which Judge Palmer presided before making his comments, see id.; United States v. Pearce, No. NMCCA 201100110, 2012 WL 5944996 (N-M. Ct. Crim. App. Nov. 28, 2012), it emphasized that “the military judge’s comments were error and evidence of an apparent bias.”   Sanders, 2012 WL 5492306, at *3.  The court added, “Other appellants remain free to show a prejudicial nexus to their own case.”  Id.  Regardless of whether such a nexus is demonstrated in any future case, LtCol Palmer has already left the bench.

The next grim development for military trial judges wasn’t self-inflicted.  In the disturbing case of United States v. Salyer, No. NMCCA 201200145 (N-M. Ct. Crim. App. Oct. 23, 2012), trial counsel somehow accessed the military judge’s personnel file in an attempt to support grounds for a causal challenge.  But rather than express outrage or dismay over such a privacy violation, NMCCA appeared to congratulate the government over it, noting that the government had verified the age of the military judge’s wife at the time of their marriage before “commencing its voir dire into how that fact might have influenced LtCol MDM’s pretrial ruling on the definition of a minor.”  Salyer, No. NMCCA 201200145, slip op. at 9.  The means by which the prosecution verified that fact was obtaining the military judge’s service record and copying a portion of it.  See id. at 3.  According to the appellant’s brief in the case, the military justice officer accessed the military judge’s personnel record without the military judge’s consent and without establishing any authority to do so.  I’m not sure whether trial judges should be more alarmed by a military justice officer’s ability and willingness to access a military judge’s service record or the Navy-Marine Corps Court’s apparent lack of concern over such an action.  As I previously asked:

Does anyone think that an AUSA could acquire a United States District Court judge’s OPM file to leaf through looking for something to support a causal challenge without notice to or permission from the U.S. District Court judge?  How do we think a U.S District Court judge would react if such a thing happened?  How do we think the legal community would react?

I might add to those questions, how would a federal circuit court respond?

Then came December’s disqualification of Judge Gross from the Hasan case.  We’ll discuss that incident at greater length later in the top-10 list.  But CAAF’s verdict was harsh:  the military judge’s handling of the case could lead a reasonable observer to conclude “that the military judge had allowed the proceedings to become a duel of wills between himself and Appellant rather than an adjudication of the serious offenses with which Appellant is charged.”  Particularly bizarre was the military judge’s order to the defense counsel to “[g]et someone over to the courtroom immediately” to clean the deliberation room latrine, in which the military judge found “what appeared to be feces spread out on the floor.”  According to a subsequent motion by the defense, “Department of Emergency Services (DES) personnel determined that the substance on the floor was in fact mud tracked in by a DES guard.”

Of course, the Hasan writ dealt with only one judge and his handling of only one case.  As we previously noted (and will note again later in the top-10 list), military judges did much this past year to add to the luster of the trial bench.  But having a military judge removed from the most highly visible case in the military justice system is a black eye for the trial judiciary.  And it wasn’t a lone rebuke, as demonstrated by NMCCA’s Pearce and Sanders decisions.  Nor can it help military judges’ morale that open season has been declared for prosecutors’ access to their personnel records.  All of this leads us to name trial judges’ tough year as one of 2012’s top military justice stories.

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