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.