In United States v. Kish, No. 201100404 (N-M. Ct. Crim. App. Jun. 17, 2014) (Kish III) (link to unpub. op.) (discussed here), the NMCCA reversed the convictions (for orders violations) of a Marine Corps recruiter (who engaged in various forms of recruiter misconduct) after determining that “the military judge’s conduct warrants a remedy to vindicate the public’s confidence in the military justice system.” Kish III, slip op. at 8. That conduct included “needlessly interject[ing] himself into the examination of witnesses and engag[ing] in lengthy and largely irrelevant questioning.” Kish III, slip op. at 3. It also involved post-trial conduct by the judge, Lieutenant Colonel Robert G. Palmer, who:
Two weeks after the sentence rehearing, on 21 June 2012, the military judge presented a Professional Military Education (PME) lecture to five “summer funners,” Marine law school students on active duty for the summer. In his two-hour lecture, the military judge spoke at length about the responsibilities of trial counsel and for a shorter period of time about defense counsel duties. Two of the officers who attended the PME were troubled by some of his comments, and drafted statements summarizing those particular comments.
Kish III, slip op. at 4. The fallout from the judge’s PME lecture was part of our #8 story in the Top Ten Military Justice Stories of 2012, and it led to appellate litigation in a parade of cases. Last September, CAAF remanded eleven cases to the NMCCA for further consideration of this issue (remands discussed here).
The CCA decided the first of those eleven cases yesterday. In a per curiam opinion in United States v. Bailey, No. 201200370 (N-M. Ct. Crim. App. Sep. 16, 2014) (link to unpub. op.), a three-judge panel of the court reviews an assertion that the appellant “was deprived of his constitutional right to an impartial judge.” Slip op. at 2. Like the appellant in Kish, the appellant in Bailey was a recruiter who engaged in various forms of misconduct. But unlike the appellant in Kish (who pleaded not guilty and was convicted after a contested trial with members, into which the judge injected himself), the appellant in Bailey pleaded guilty before the military judge sitting alone as a special court-martial.
Finding no error deserving of relief in Bailey, the CCA panel (including one of the appellate judges from the panel that considered Kish III) notes:
The appellant has cited no examples at his court-martial where the military judge acted improperly or in any way demonstrated a lack of impartiality. A thorough reading of the record reveals none. To the contrary, the military judge was particularly careful to avoid hearing or seeing any inadmissible evidence offered by the Government.5Unlike inKish, the military judge did nothing at trial to bring his impartiality into question. Thus, in this case, the effect of the PME comments is not compounded with anything at trial to reach the level of undermining public confidence in the judicial system’s integrity.
Bailey, slip op. at 5-6.
But in Bailey the CCA appears to soften its characterization of the PME discussed in Kish III. Writing for the CCA in Kish III, Chief Judge Modzelewski explained:
A reasonable person who observed or had knowledge of the trial judge’s conduct in Kish I and the comments he made during his PME lecture would have a serious question as to the fairness and impartiality of the court-martial. Said another way, such a person would have viewed the entire Kish trial quite differently in light of the military judge’s PME lecture. That observer may well have concluded that, by hijacking the direct examination of AS, the military judge was telegraphing a message that the trial counsel was not aggressive enough and was not overwhelming the members with an avalanche of evidence, as he exhorted the Marine law students to do. It would thus appear that the military judge became a second prosecutor to show trial counsel “how it should be done.”
Kish III, slip op. at 7 (emphasis added). But in the per curiam opinion in Bailey, the CCA explains:
An examination of the entire circumstances surrounding the PME lecture, however, places the statements properly in context. We are satisfied that any reasonable person knowing all the circumstances of the lecture, as well as the manner in which the military judge conducted the proceedings in this case, would not question the integrity of the judicial system. Unlike in Kish, there is no “nexus between the military judge’s conduct during [Kish’s] trial and his later comments” at the PME lecture. Kish, 2014 CCA LEXIS 358 at *13. Rather, the contrast between the military judge’s comments and his performance during the court-martial tends to underscore this court’s conclusion that he was speaking during the lecture in character, and not in his own voice. Accordingly, we find no apparent bias.
Bailey, slip op. at 6-7 (emphasis added).