Our #8 story in our top-ten list of military justice stories of 2012 included the continuing fallout from a period of instruction given by Marine Corps military judge LtCol Robert Palmer, who “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). The NMCCA wrote:
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). A parade of appeals followed. In one such case, United States v. Kish, No. 13-0104/MC (discussed in this post), CAAF ordered a DuBay hearing “to make findings of fact and conclusions of law related to what, if any, statements the military judge made on or about June 21, 2012, at a Professional Military Education meeting with junior officers regarding the practice of military justice.”
CAAF also granted review in eleven other cases.But on Monday CAAF summarily reversed and remanded each of those cases for further consideration after the NMCCA completes its review in Kish.