I’m certain that there will be plenty of discussion about United States v. Kish, 201100404 (N-MCCA 17 Jun 14) in the coming days. I don’t intend to give an exhaustive analysis of the case in this post, but merely to make one observation about what I believe was a missed opportunity in this opinion.

Without going through all the procedural posture of Kish, the main issue the N-MCCA was reviewing was whether the military judge had abandoned his impartial role in the case. See previous coverage here. Part and parcel of the appellant’s claim was the military judge’s PME to Marine student judge advocates at Parris Island. See previous coverage here.

In the Appendix to the opinion, the N-MCCA includes findings of fact and conclusions of law based on the Dubay hearing that CAAF ordered, and declines to find an actual basis on the part of the military judge (although they do find apparent bias and dismiss without prejudice in the main opinion). Among the findings of fact were statements that the military judge said during the PME including:

a. You must have a willing suspension of disbelief of the victims once the convening authority has decided to proceed with the charges.
b. The defendant is guilty. We wouldn’t be at this stage if he wasn’t guilty.
c. As trial counsel, it is your job to prove the defendant is guilty with the fullest veracity. Don’t hold back. Once convicted, we need to crush these Marines and get them out.
d. Defendants are scumbags.
e. If a trial counsel loses a child pornography case, that trial counsel will go to hell.

Slip op. at 15. There is also discussion of the military judge pointing to the defense table and saying that the accused is guilty if he’s sitting there, and that the Marine student judge advocates understood that to mean that this must be the mindset of a TC zealously representing the government. Slip op. at 16. There was also discussion of how the military judge told a story about his time as a trial counsel where the accused received a lesser sentence than he believed was warranted. The military judge stated words to the effect of “maybe I’ll just kill him when he get [sic] out [of confinement].”

In finding that these comments did not constitute actual bias, the N-MCCA stated:

These statements clearly reflect exceptionally poor judgment and invite questions regarding judicial temperament and professionalism. Nevertheless, considering the context provided by the law students in the room, we are convinced that LtCol Palmer intended his remarks to convey to the law students the perspective that he believed they must have to succeed as trial counsel. Said differently, we are convinced that he was voicing not his own biases or prejudices, but instead a mindset that he believes a junior counsel must adopt to be a tenacious and zealous advocate.

Slip Op. at 21-22. What the N-MCCA left unsaid, unfortunately, was how wholly inappropriate the attitude, evinced in the above comments, is for a lawyer prosecuting on behalf of the United States. There could be few attitudes more damaging to successful, zealous and ethical prosecution than one that dehumanizes a defendant and throws objectivity out the window. How do the viewpoints expressed above jive with the following well-known statements about the role of an attorney prosecuting on behalf of the government?

“The prosecutor . . . enters a courtroom to speak for the People and not just some of the People. The prosecutor speaks not solely for the victim, or the police, or those who support them, but for all the People. That body of ‘the People’ includes the defendant and his family and those who care about him.”

Lindsey v. State, 725 P.2d 649 (Wyo. 1986)

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor-indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

Berger v. United States, 295 U.S. 78, 88 (1935).

The fact that the N-MCCA excuses the military judge’s comments as “not his own biases or prejudices, but instead a mindset that he believes a junior counsel must adopt to be a tenacious and zealous advocate,” without pointing out the complete impropriety of that type of thinking as a prosecutor, was a missed opportunity.

27 Responses to “What Was Left Unsaid In Kish”

  1. Just Sayin' says:

    Military “justice” is becoming a parody of itself. As a civilian prosecutor, the notion of box scores is repugnant among my colleagues. We are not there to “win.” We are there to do justice. And part of doing justice is remembering the defendant is a person with rights. Unfortunately too many military prosecutors I knew didn’t see it that way. Not all. But some. And some is too many. 

  2. President Camacho says:

    How the Marine Corps lets this guy supervise another attorney again I will never understand. He should be doing non criminal, non supervisory work until retirement. Jeez, how worse can a sitting judge act?

  3. President Camacho says:

    Just Sayin – the office I worked in had that vibe. It was all about how many charges and specs u could tack on and how creative u could get resulting in a waste in time and resources not to mention it didn’t serve the client (army) most times. I always got the feeling it was bc we don’t have the level of crime that DAs face and the military’s ever present quest to do more ( than the last guy). Same w CID who turned simple buddy distros into the next Pablo Escobar 

  4. Sid Sheldon says:

    This is abysmal–absolutely abysmal. I cannot think of a lower point in military justice.  Absolutely abysmal.  

  5. stewie says:

    No defense of this judge because that was beyond ridiculous, mind-boggling ridiculous, but the idea that there aren’t also “some” civilians who look at the notion of “box scores” is also a little ridiculous. I highly doubt this is a military specific issue.  Having said that, wherever you find conduct like this you have to stamp it out vigorously.
     
    This is another area where ethical complaints to state bars seem appropriate IMO.

  6. Matt says:

    I find that this opinion “clearly reflect[s] exceptionally poor judgment and invite[s] questions regarding judicial temperament and professionalism.”  Our courts are too afraid of calling misconduct what it is.  This was not just poor judgment.  It reflects an attitude of extreme hostility towards the defense. 

  7. k fischer says:

    Can anyone in the USMC logically and rationally explain why Lt Col. Palmer is now a Regional Defense Counsel?

  8. President Camacho says:

    Fischer- The commandant gives similar speeches. Hell. This guy might get a promotion from this regime. Sad  very sad
     

  9. dyskolos says:

    Matt is correct. The court of appeals was craven for not calling it like they see it. There is no excuse for allowing a sitting military judge to inject this bias into the system, to the contrary it must be stamped out wherever and whenever found. In addition to the familiar quotations from Lindsey and Berger, the system not only has to be fair, but it must appear to be fair.
     
    Sam Adams [patriot and brewmeister] is right, this was a missed opportunity to make a statement. One has to wonder why they didn’t make an example of this military judge. 

  10. A. Dreyfus says:

    Military justice?  Just Sayin nails it. It is still the military, but not justice. As a former Chief of Justice I find it sad, yet appropriate in this climate, that many “justice” offices are being remained criminal law division or department. Might as well remove justice from the name of the office if the quest is merely convictions. I would never again prosecute for the Armed Forces.

  11. President Camacho says:

    Dreyfus – I am grateful I won’t ever have to prosecute another case on behalf of the army again. I genuinely feel sorry for TCs today. It was bad enough when I was one. It is a million times worse now. I would rather be the guy who cleans the portojons at drop zones.

  12. k fischer says:

    Mr. President, 
     
    My intent is not to talk like a bundle of sticks or like my $hit’s all retarded, but your explanation is neither logical nor rational.  In fact, it is tinged with cynicism and creates even more confusion.  
     
    I was hoping for something like, “The Corps was hoping he’d become so disinheartened about his new billet that he’d take the hint and retire.”  Because any other explanation lacks logic.

  13. Just Sayin' says:

    Just noticed who penned the opinion.  Nope.  No surprises here.

  14. Pres Camacho says:

    Cynical. Guilty. Wish I wasn’t so but my frustration gets the better of me. Will tone it down down. It’s got electrolytes. 

  15. Stephen Wilson says:

    K. Fischer:
     
    As opposed to the USMC’s logic and rationality of appointing him to the defense billet in the first place?
     

  16. k fischer says:

    Tone what down?  I was just trying to figure out a clever way to quote Idiocracy, which, aside from Top Gun, is one of the most brilliant scripts ever written.

  17. Legalobserver says:

    Fischer, the logical explanation can be found in the source of the character testimony below: http://www.jag.navy.mil/courts/documents/archive/2013/BREMER201200472PUB.pdf

  18. President Camacho says:

    When the opening to the movie begins with:  The years passed, mankind became stupider at a frightening rate. Some had high hopes the genetic engineering would correct this trend in evolution, but sadly the greatest minds and resources where focused on conquering hair loss and prolonging erections. —- It’s going to be Oscar worthy.
     
     

  19. Anon says:

    Just to put one area of this to rest: LtCol Palmer is no longer going to be the Regional Defense Counsel.

  20. k fischer says:

    Anon, 
     
    Looks like logic and rational thinking triumphs.  That’s great news for Marine Accused, bad news for civilian defense counsel.  I guess I need to pull my ads in the Jacksonville Daily News, referencing the quotes from the RDC.  

  21. Mud says:

    For Sid Sheldon – I can provide you with additional information to push the military justice system further down to lower lows. Police lying under oath, hiding evidence, legal offices violating 18 USC 1001 in statements to civilians, Congressional offices, etc; refusing to act on information that would immediately change a case and telling a service member they’ll be happy when that person and family are gone. With all due respect to your experiences and observations, I would offer that bedrock has not been reached, there’s plenty of mud left for military justice to continue sinking deeper and deeper. 

  22. President Camacho says:

    Mud.  Your are going to have to back those claims up. You sound a bit “invisible warish” with those (in the opposite direction). Since when does congress get evidence that would exonerate someone? Do tell.

  23. Just Sayin' says:

    I haven’t seen those extremes in courts-martial, thank God. But I have seen similar tactics in professional responsibility “investigations”. Attorneys ordered to surrender files containing clearly exculpatory information and then, when the investigation conveniently ignored those portions of the file, the attorney was told to submit a FOIA for their own work product. Meanwhile, the Rules Counsel would not extend the response deadlines while the FOIA was pending. Pretty gross. 

  24. Dew_Process says:

    And just in case anyone missed it, there’s this report:
     
    http://www.mcclatchydc.com/2014/06/17/230607/military-court-probes-potential.html?sp=/99/200/365/
     
    If one ponders the “morality” of this situation in the context of “good order and discipline,” or “conduct unbecoming an officer and gentleman,” it would seem to be a conundrum of epic proportions.

  25. k fischer says:

    President Camacho, 
     
    Mud could actually be referring anecdotes that run parallel with “The Invisible War,” as military injustice depends on which side you are on, i.e. victims rights vs. constitutional rights of the accused.
     
    But, I’ll start with something that backs one of his claims up, i.e. Police lying under oath, which I agree, I have never known a CID agent who lied under oath to protect an accused. In September 2010, I cross examined SA Jason Proffitt of the Ft. Benning CID office at a BCDSPC court martial with panel members where I asked, “Isn’t it true that you advised the trial counsel that in your opinion this case wasn’t worth prosecuting?”
     
    The trial counsel objected based on relevance, and when the judge asked me what the relevance was, I answered, “I’d like for the panel to hear the agents’ opinion on the case, which I will argue explains his lackadaisical approach to his entire investigation.” Much to my suprise, the trial counsel withdrew her objection, so I looked at SA Proffitt and said, “So, did you communicate to the trial counsel that this case shouldn’t be prosecuted?”
     
    He responded, “Absolutely NOT!”
     
    So, I pulled out the e-mail and showed it to the previously objecting Trial counsel to whom the e-mail was addressed.  She read it, and after her hands stopped shaking, she asked for an Article 39(a).  After the Judge recessed the court, she questioned my late notice, authentication, how I obtained the e-mail, and a number of other accusations typical of a person who indirectly was caught in a misdeed and wanted to deflect blame.  It reminded me much like a complaining witness who is making up a false sexual assault allegation, but fortunately, I, as the metephorical accused, had the video of the act.  Ultimately, the judge permitted me to ask one question to SA Jason Proffitt to impeach his credibility.
     
    So, when the panel returned, I asked SA Proffitt as I was reading off the e-mail, “SA Proffitt, isn’t it true that on January 18, 2010 at 0821 hrs, you sent an e-mail to CPT, the trial counsel in this case, where you said, and I quote ‘This case really isn’t worth prosecuting, but that’s just my two cents’.”
     
    SA Proffitt glared at me for a few seconds and after the tension built he bleated, “Yes.”  By the way, if this ignoramus is still a CID agent, please feel free to contact me regarding his perjury, as I don’t think any panel should find him credible, as during the argument I had wiith the TC, he interrupted to shift the blame to me insinuating that I hacked into the CID e-mail system because he “never would have put that e-mail in the file,” which is where I told the TC I found it.  I looked at him and in a Jeff Spicoliesque voice said, “Check your file, Buuuuud, because that’s where I found it.”
     
    So, I killed two birds with one stone.  I showed the panel that this SA was willing to lie under oath, and I also showed them that the TC thought nothing of it, until she realized I had the e-mail.  And giving all due credit to this TC, it is entirely possible that she completely forgot about the e-mail that he sent to her. 
     
    In addition, every witness called by the Government in that case that made sworn statements that were positive for my client when initially questioned by CID, suddenly changed their story at trial.  I suspected, but could not prove, that they were coached or threatened by someone.  Nonetheless, it turned out to be a net positive, as this made my impeachment of them quite easy.  And, after the full acquittal, the COJ had to be told to stand down by the MJ no less than twice when he walked into chambers and interrupted the Bridging the Gap and started yelling that I lacked professionalism.  I admit that I did everything I could to embarrass the Government in the case, but I warned him that the case was going to be an embarrassment for them when my offer of a suspended Chapter 10 got disapproved by the CG.  But, it was so tense in that room that I was calculating how many times I would let him hit me before defending myself in order to maximize the value of my FTCA claim.  Right after I had decided on three, he calmed down much to the chagrin of the dollar signs that manifested in my eyes.
     
    Please note that this is just one anecdote and does not impugn all of military justice.  But, it seems like we are getting nudged to gloss over UCI and excuse bad actors in the name of justice for victims, which gives bad actors a feeling of confidence that they can do whatever they want with impunity.  I actually prefer that Government players act like the ones in the abovementioned case because it makes my job a lot easier.  For the past two years, the Ft. Benning JAG office has had a good crew of TC’s, as well as TDS counsel, which is normally the case.  But, these things do run in cycles, and when you get a few bad apples, then they can definitely spoil the bunch and make the most open-minded supporter and believer in the fairness of the UCMJ a cynic.

  26. President Dwayne Elizondo Mountain Dew Herbert Camacho says:

    Fischer – fair enough. Would still like to hear some of the evidence of his though b/c they are big claims.  The CID Agents and TCs that I have come across that help get some of these pathetic cases to trial (in the defense of the Gov’t, in many cases it is the GCMCA covering his/her butt by sending everything to trial – esp nowadays) is not outright deceit/hiding evidence/perjury but rather just plain old incompetence. TCs who are overconfident in their abilities or assessment of the evidence, SPECIAL Agents (as opposent to not so special agents —- they would always give me the evil eye when I asked if there was any other kind of agent) who had no business doing detective work and were just horrifyingly incompetent, agents who thought their job was to find a crime no matter what the evidence said (this was the biggest problem) —- if CID Agents would take the approach of “did a crime actually occur?” – and keep an open mind about all parties including the alleged victim, the system would be so much better – if they would just turn on the damn video camera and record like their reg instructs them – record both the accused, the alleged victim, and the key witnesses – things would be so much better — the easy case i prosecuted, and the easiest case for the defense counsel (by his own admission) was a rape case (and a host of other charges) in which the civilian police got a video taped full confession of the confusion – the detective didn’t raise his voice, curse, threaten – just acted like a professional.
    Now, since you all say you ain’t got no money, we have “proprietarily” obtained for you one of them court-appointed lawyers, so put your hands together and give it up for Frito Pendejo!
     

  27. J.M. says:

    k fischer: According to the website linked below, SA Proffitt is currently assigned to CID at Bragg.

    http://army.togetherweserved.com/army/servlet/tws.webapp.WebApp?cmd=SBVTimeLine&type=Person&ID=81975