We’ve previously discussed the disturbing comments that a Marine Corps military judge made at a PME for summer funners, as summarized here by NMCCA:
During the PME, the military judge made various statements not in keeping with standards of judicial decorum. Two of the law students in attendance were concerned with the military judge’s comments and prepared statements reporting that the military judge referred to defendants as “scumbags,” made statements that Congress and the Commandant of the Marine Corps wanted more convictions, and that trial counsel should assume the defendant is guilty. Moreover, pertinent to the facts of this appeal, one law student wrote that the military judge, “said that if you are trial council [sic] and prosecuting a child pornography defendent [sic] and he gets off because of your incompetence you will go to hell;” but further adds that “I think he was trying to be humorous with this comment because he chuckled when he said it.”
United States v. Sanders, No. NMCCA 201200202, 2012 WL 5492306, at *1 (N-M. Ct. Crim. App. Nov. 13, 2012).
NMCCA held that the military judge erred by making the comments and created an appearance of bias. Id., 2012 WL 5492306, at *3. But in a series of opinions, NMCCA held that the accused wasn’t prejudiced by them. See, e.g., id.
Now CAAF has ordered a DuBay hearing:
On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, and Appellant’s motion to supplement the record, it is ordered that the motion to supplement the record is granted and that said petition is granted on the following issue:
AN ACCUSED HAS A CONSTITUTIONAL RIGHT TO AN IMPARTIAL JUDGE. HERE, THE MILITARY JUDGE TOOK OVER THE DIRECT EXAMINATION OF A KEY WITNESS, MADE ERRATIC COMMENTS ON THE RECORD, ALLOWED MEMBERS TO CALL OUT QUESTIONS IN OPEN COURT, AND MADE COMMENTS AFTER TRIAL DEMONSTRATING HIS BIAS AGAINST ACCUSED GENERALLY. DID THE MILITARY JUDGE’S ACTIONS PUT INTO DOUBT THE FAIRNESS AND IMPARTIALITY OF STAFF SERGEANT KISH’S COURT-MARTIAL?
The decision of the United States Navy-Marine Corps Court of Criminal Appeals is set aside, and the case is returned to the Judge Advocate General of the Navy for remand to an appropriate convening authority to order a hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967), to make findings of fact and conclusions of law related to what, if any, statements the military judge made on or about June 21, 2012, at a Professional Military Education meeting with junior officers regarding the practice of military justice. At the conclusion of the DuBay hearing, the record will be transmitted to the Court of Criminal Appeals for further review under Article 66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866(c) (2006). Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2006), shall apply.
United States v. Kish, __ M.J. __, No. 13-0104/MC (C.A.A.F. March 14, 2013) (summary disposition).
CAAF also granted review of three other cases raising similar issues, including the Sanders case cited above.