A rather unique feature of a court-martial is that both the judge and the members can ask questions of the witnesses. Typically, when a member asks a question, the question is first written down and counsel for both sides have an opportunity to object in advance. Not so when the judge asks questions. The judge just asks away.
This creates the dangerous possibility that a party will object to a question from the judge after it is asked (and maybe even after it is answered). And this possibility is dangerous indeed, as “the influence of the trial judge on the jury is necessarily and properly of great weight and jurors are ever watchful of the words that fall from him. Particularly in a criminal trial, the judge’s last word is apt to be the decisive word.” United States v. McIlwain, 66 M.J. 312, 314 (C.A.A.F. 2008) (marks and citations omitted).
In the case of United States v. Loiacono, No. 201200451 (N-M.Ct.Crim.App. Mar. 25, 2014) (link to unpub. op.), the Navy-Marine Corps Court of Criminal Appeals considered the propriety of questions asked by the military judge during the trial, along with numerous other issues. The appellant was convicted of making a false official statement and engaging in indecent liberties with a child in violation of Articles 107 and 120. But he was acquitted of an additional charge of communicating indecent language.
For the indecent language charge, the appellant was alleged to have made anonymous phone calls to a hotel guest, “AN”:
On 18 August 2011, one of the hotel guests, AN, a German national, received anonymous phone calls soliciting sexual acts. . . . When AN registered his complaint, hotel management investigated and determined that the phone calls had come from within the hotel. . . .
AN checked out of the hotel on 19 August, but returned on 23 August and checked into Room 521. At 23:57 on 24 August 2011, AN received another anonymous phone call and recognized the voice as the same person who had called him on 18 August 2011. After he hung up, AN called AS, a traveling companion who was staying in Room 229. AN had previously told AS about the anonymous phone calls and both agreed that if the phone calls started again, AS would assist AN in discovering the identity of the caller in an effort to make the calls stop.
Slip op. at 3. AN received another such call, arranged to meet the caller in a room, went to the room with AS, turned on the lights, and discovered Appellant in bed. “The appellant then asked ‘what are you doing in my room.’ Both AN and AS left the room.” Slip op. at 3.
But multiple guests complained to the hotel management about anonymous phone calls soliciting sexual acts, and so the hotel began to track room-to-room calls. The Prosecution attempted to admit a log of these calls into evidence:
When AN first complained to hotel management about receiving anonymous and indecent phone calls, he was not the only one who had complained. Prior to trial, the Government provided notice to the defense pursuant to MIL. R. EVID 404(b) that it would seek to admit evidence of other hotel guests who had received anonymous and indecent phone calls. The appellant filed a motion to exclude this evidence primarily citing MIL. R. EVID. 403. The military judge granted the motion and ruled that the room-to-room telephone logs be redacted to show only telephone logs associated with calls to specified rooms.
Slip op. at 27 (citations to record omitted). So, with the other calls excluded, AN testified for the Prosecution at trial. After direct examination, cross examination, and re-direct examination, the military judge questioned AN:
MJ: You said that you and [AS] had talked about the possibility of this person calling you again before you went back to the Marriott, is that correct?
AN: No, sir, we – I arrived at the 27th [sic].
AN: And there I met [AS], and he was the co-pilot of the next day. And we talked about the phone calls and–
CDC: Your Honor, I’m just going to object for hearsay purposes. I know, Your Honor is asking the questions, so, respectfully I objected under hearsay.
MJ: Okay. I’ll actually sustain your objection against me.
MJ: What made you think you needed a plan, in case you got more phone calls? Why did you think you would get more phone calls of a harassing nature?
AN: Because I haven’t been the only one.
CDC: Your Honor, I’m going to ask for a 39(a) [session], Your Honor.
Slip op. at 30. There are a number of obvious issues with this line of questioning. The judge began by asking the witness about an out-of-court conversation with a third party, inviting the hearsay response. Then, after he sustained an objection to his own question, the judge continued to probe out-of-court acts with a compound and argumentative question that not only invited another hearsay response, but also invited reference to the other calls (that were themselves inadmissible).
Because of this exchange, the appellant asserted on appeal that “the military judge abandoned his impartial role when he asked AN a question and AN’s response touched on an evidentiary matter that the military judge had previously ruled inadmissible.” Slip op. at 29.
The CCA rejected this asserted error, concluding:
Based on our analysis of the colloquy between the military judge and AN, we discern no partiality with regard to that specific question. It was an open-ended question, which, contrary to the appellant’s argument, did not violate the military judge’s earlier evidentiary ruling. The substance of the question itself does not suggest an answer that would embrace inadmissible evidence.
Slip op. at 31 (citations omitted). This conclusion is awfully puzzling, since there are only so many ways to respond to the question, “why did you think you would get more phone calls of a harassing nature?” One way would involve the hearsay response (i.e., someone told him about other calls). Another would involve speculation. A third would involve some other act by the appellant, raising additional concerns under M.R.E. 404(b). And, of course, there is also the issue of the judge’s editorial characterization of the calls as “harassing.”
So we’re left to wonder what the judge was trying to elicit, if not the very testimony that he got.
But that’s not the end of the CCA’s analysis. It continued:
Once AN’s answer did touch on evidence previously ruled inadmissible, the military judge directed an immediate Article 39(a) session, excused the members, and took argument from both parties. When he brought the members back into court, the military judge provided a strong curative instruction. The trial defense counsel took no issue with the curative instruction. All members indicated that they could follow the instruction. The members are presumed to have followed the military judge’s instruction.
We also find that no prejudice flowed from AN’s answer because the members acquitted the appellant of the indecent language offense related to AN.
Slip op. at 31 (citation to record omitted). It would be nice to see the text of this “strong curative instruction,” especially since part of the CCA’s analysis is consideration of “the public’s confidence in the military justice system.” Slip op. at 29 (marks and citation omitted). But even with an instruction, we just can’t be certain that the judge’s other conduct during the trial didn’t discourage the Defense from objecting to the instruction, asking the judge to recuse himself, or moving for a mistrial. And before you call me nuts for considering the possibility that the Defense would be gun-shy in a situation like this, consider the following comment by Senior Judge Cox that I transcribed from the oral argument of United States v. Salyer, 72 M.J. 415 (C.A.A.F. 2013) (CAAFlog case page):
[Transcript begins at 37:26 of the oral argument audio]
J. COX: Counsel, the way I was hoping to evaluate this case – First of all let me say that any motion to recuse a judge made by a participant in the trial is fraught with danger no matter what you do. I mean, you know, you better be right.
GOV’T COUNSEL: Yes, Your Honor.
J. COX: Because there you are. The question is what is the remedy. No matter what – you say I don’t want Cox to be my judge because I hate the son-of-a-gun and he cheats at cards and you know everything else, but I – he’s not going to grant my motion to recuse so I’ve got to accuse him of something else, well that case is over. Unless he wins his recusal motion. So the question is, I grant the recusal. Now what do we do.
[Transcript ends at 38:12 of the oral argument audio]
If a civilian judge of CAAF, in the comforts of Judiciary Square, thinks that “any motion to recuse a judge made by a participant in the trial is fraught with danger,” one can only imagine what the Defense in this case thought when the trial judge embarked on his objectionable and argumentative line of questioning.
And while the CCA finds the acquittal dispositive on the question of prejudice, I’m not so convinced. After all, “questions of judicial appearance may be particularly important in the military justice system where trial judges wear government green and blue and not just judicial black.” United States v. Bratcher, 56 M.J. 87, 94 (C.A.A.F. 2001) (Baker, J. concurring).