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.

7 Responses to “NMCCA Sets Aside Sentence in Another Parris Island Case for Apparent Judicial Bias”

  1. AF JAG says:

    I question the remedy in this case–a entirely new sentencing hearing?  WHY?  The accused already had a sweetheart deal here, which he got the benefit of–30 days confinement only, and it sounds like the PTA placed no limitations on imposition of a BCD.  That’s the deal he bargained for.  So how would simply affirming the deal that the accused voluntarily agreed to “risk undermining the public’s confidence in the judicial process”?
     
    Again, I”ll grant you “implied bias” in light of the military judge’s “crush Marines once convicted and get them out” comments a month after this trial, but this remedy seems to overshoot the mark.
     

  2. stewie says:

    Well apparently the government didn’t consider it a sweetheart deal here since they only asked for 3 months.
     
    How do we know he might not have beaten the deal?
     
    The point here is about the perception, and the public’s confidence in the judicial process is not something that we want an accused to be able to “bargain away” IMO.
     
    We should always be VERY strict IMO with the appearance of the principal actors in the court-martial process, particularly the military judge.

  3. AF JAG says:

    Beating a 30 day deal when there were 6 charges on the charge sheet including larceny, providing false information to a police officer, driving with a suspended license, stealing a license plate, counterfeiting currency, and altering a base decal???  Come on.  Not likely.  Even if you apply the standard “is there a reasonable probability that ANY military judge would have given less than 30 days and a BCD?” I think that answer is an unequivocal, NO. 
     
    Moreover, there’s any number of reasons the Convening Authority throws a sweetheart deal the accused’s way–usually because he just wants the guy GONE immediately and is willing to take less jail time (than the offense(s) actually “deserves”) to do it.  The point is:  where is the “unfairness” in giving the accused EXACTLY what he bargained for?  “Biased” judge or not, this accused said that a 30 day cap and no limits on imposing a BCD would be mighty fine, and that’s what he got.  I think it strains the bounds of credulity to say that any military judge would have given him LESS than 30 days and a BCD for what appears as though it could have been relatively “minor” but nonetheless persistent and continuing misconduct.    
     
    If this isn’t a PTA case, then I completely understand the Court’s determining an all new sentencing hearing is required.  But it is.  The accused himself set the conditions for a “fair sentence” when he signed that PTA.  So if the accused now wants to claim that the deal he bargained for is “unfair,” he’s only got one person to blame–himself.

  4. stewie says:

    I remained unconvinced until your third question mark…although if you had only used two exclamation points you would have also changed my position as well.
     
    The TC asked for 3 months. I’m going to assume the TC had a better understanding of the maximum he or she thought could be gotten out of this case then you or I.  We all know TC ask for slightly more than they think the case is worth most of the time. I certainly did on the government side.  Because we know the defense will ask for less, and the result will hit the sweet spot.  Or so the theory goes.
     
    This isn’t about “unfairness” in the sentence.  Using your logic, there’s no need to follow any rules so long as the sentence received is deemed enough of a “sweetheart deal” yes?  Heck, why even have a trial in cases where the deal is a “sweetheart deal?”
     
    I don’t think it strains anything to say a judge might have given less than 30 days when you have a deal signed by a CA for, wait for it, 30 days, and the TC asks for 90 days.
     
    I don’t think you understand how GPs in the military work. The deal isn’t the finally word and the accused has the right to beat the deal. Perhaps you think that unreasonable or unfair, and that’s fine…Congress is in session, perhaps you can persuade them to change the rules.  Until then, the accused gets two bites at the apple, even if you think his first bite was more than he deserved.
     
    There’s also the whole perception that the process is done fairly all the way through thing, but you seem so hung up on sweetheart deals that I fear any further discussion there falls on deaf ears.

  5. Jolly Roger says:

    Accused didn’t get exactly what he bargained for just because he got the max under the deal. Exactly what he bargained for would have been a cap AND a fair shot at beating the cap in a sentencing proceeding with an unbiased judge.

  6. ScottComstock says:

    Long-time lurker, first-time poster.  Although I’m a civilian non-lawyer, military justice has always fascinated me, and I appreciate the work you folks do in making MilJus more accessible.  I’m curious, how many cases were affected by LtCol Palmer’s PME comments, and has (or will) he ever face disciplinary action for his comments?  Infuriatingly, the NMCCA website doesn’t allow Google searches against their opinion archives.

  7. Zachary D Spilman says:

    Well, ScottComstock, I haven’t kept a close tally of the NMCCA’s opinions, but I do know that after CAAF ordered the Dubay hearing in United States v. Kish, No. 13-0104/MC (discussed in this post), the court remanded 11 additional cases:

    Arnold
    Bailey
    Batchelder
    Ellis
    Hickerson
    Myrick
    Pacheco
    Pearce
    Sanders
    Tiger
    Tyler

    The remands were reported in this post