As I noted in my write-up on the number four story in our top ten list for 2014, the NMCCA recently set aside another sentence in a case from Parris Island, based on the military judge’s PME to law student interns. The accused in United States v. Arnold, No. 201200382 (N-M.C.C.A. Dec. 23 2014) was convicted, pursuant to his pleas, of larceny, providing false information to a police officer, driving with a suspended license, stealing a license plate, counterfeiting currency, and altering a base decal, all in violation of Articles 121 and 134, UCMJ.
The appellant was sentenced to 12 months confinement, forfeiture of $950.00 pay per month for 12 months, reduction to E-1 and a bad conduct discharge. The convening authority approved the sentence as adjudged, but suspended all confinement in excess of 30 days pursuant to a pretrial agreement. This sentencing occurred approximately four weeks prior to the military judge’s PME to Marine law students at Parris Island. In his original assignment of error, the appellant alleged the military judge was disqualified because he showed an inflexible attitude about sentencing and allowed his perceptions about the expectations of the Commandant of the Marine Corps and Congress to enter his deliberations. The NMCCA affirmed the findings and sentence as approved; however, the case was remanded by CAAF following its decision in United States v. Kish.
On remand, the NMCCA considered allegations of both actual and apparent bias. However, following the pattern we have seen in Kish and other related cases, the NMCCA rejected any claims of actual bias, saying:
As this court has already held that the military judge’s PME statements do not support a determination of actual bias against service member defendants, and there is nothing in the appellant’s record of trial to suggest that the military judge had a personal bias or prejudice concerning him or his case, we limit our review here to whether there was apparent bias concerning the appellant’s case.
Slip op. at 4. The NMCCA then considers whether there is apparent bias, focusing on the appellant’s two arguments in support of apparent bias:
First, the appellant argues that the military judge’s PME statements, made less than a month after he sentenced the appellant, were close enough in time to create an appearance of bias on the part of the military judge. Second, the appellant argues that the military judge’s imposition of the maximum available sentence, despite the trial counsel’s recommendation of a significantly less severe one, constitutes apparent bias.
Slip op. 4-5. The NMCCA agrees with the appellant, finding that while the military judge’s comments at the PME to the students do not by themselves constitute apparent bias. When coupled with other facts of the case, the comments becomes more “problematic:”
Here, despite the Government’s request for “reduction to E-1, 90 days confinement, and a bad-conduct discharge,” the military judge awarded the maximum sentence allowed by law at a special court-martial: reduction to E-1, 12 months of confinement, forfeiture of $950.00 pay per month for 12 months, and a bad-conduct discharge. Moreover, the adjudged sentence appears all the more harsh in light of the CA’s willingness, as part of a pretrial agreement, to suspend all confinement in excess of 30 days. Given these facts, we find that an informed member of the public might reasonably question the military judge’s impartiality and the integrity of our judicial system.
Slip op. at 5. Therefore, the NMCCA affirmed the findings, but set aside the sentence and authorized a rehearing.
By my count, this makes the third (although I may have missed one) case in which CAAF or the NMCCA has found apparent bias in connection with the Parris Island PME. While the military judge’s sentence here was well in excess of both the trial counsel’s recommended sentence and the pretrial agreement, the appellant had some not-insignificant charges on the charge sheet. It would be interesting to know a little more about the facts of the case to see exactly how unreasonable or not the military judge’s sentence may have been. While it does make sense to tie the finding of apparent bias to the judge’s higher sentence, it seems strange not to mention the exact details of the misconduct. After all, if there was some serious counterfeiting activity or larceny, I would argue the judge’s sentence does not necessarily create apparent bias, simply because the trial counsel and convening authority went low on the sentence. Sometimes convening authorities and trial counsel may be willing to give away more on the confinement part of the sentence if they know it’s going to move the case and a bad-conduct discharge is likely. My gut instinct is that the misconduct here was actually fairly minor given the NMCCA’s action and omission of further facts; however, it would be interesting to know a bit more.