United States v. Kish

UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
M.D. MODZELEWSKI, F.D. MITCHELL, J.A. FISCHER
Appellate Military Judges
UNITED STATES OF AMERICA
v.
DUSTIN D. KISH
STAFF SERGEANT (E-6), U.S. MARINE CORPS
NMCCA 201100404
SPECIAL COURT-MARTIAL
Sentence Adjudged: 6 June 2012.
Military Judge: LtCol Robert G. Palmer, USMC.
Convening Authority: Commanding Officer, First Marine Corps
District, Eastern Recruiting Region, Garden City, NY.
Staff Judge Advocate's Recommendation: Col E.R. Kleis,
USMC.
For Appellant: LCDR Ryan C. Mattina, JAGC, USN.
For Appellee: Maj Paul Ervasti, USMC.
17 June 2014
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OPINION OF THE COURT
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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.
MODZELEWSKI1, Chief Judge:
This case is before us for a third time. We begin with a
brief recitation of this case’s procedural posture. In our
initial decision, United States v. Kish (Kish I), No. 201100404,
2012 CCA LEXIS 728 (N.M.Ct.Crim.App. 29 Mar 2012) (per curiam),
we set aside a finding of guilty as to one specification,
dismissed that specification, and affirmed the remaining
1 Former Chief Judge Modzelewski participated in the decision of this case
prior to detaching from the court.
findings of guilty. We also set aside the sentence and
authorized a rehearing. Following that rehearing, we affirmed
the sentence as approved by the convening authority (CA).
United States v. Kish (Kish II), No. 201100404, 2012 CCA LEXIS
682 (N.M.Ct.Crim.App. 31 Aug 2012) (per curiam). After filing a
petition in the Court of Appeals for the Armed Forces (CAAF),
the appellant subsequently filed a motion to attach two
statements. Those statements were from two Marine junior
officers who had attended a training session given by the
military judge about two weeks after the appellant’s
resentencing hearing.
The CAAF granted the appellant’s motion to attach, granted
the petition, set aside this court’s decision in Kish II, and
ordered a hearing pursuant to United States v. DuBay, 37 C.M.R.
411 (C.M.A 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.” United States v. Kish (Kish III), 72 M.J. 158(C.A.A.F. 2013) (summary disposition). The DuBay hearing
concluded on 15 July 2013, and the record was subsequently
docketed with this Court for the third time. Additional facts
regarding the procedural posture of this case are incorporated
below.
Factual and Procedural Background
The appellant was a canvassing recruiter assigned to
Recruiting Substation (RSS) Oswego, New York, in 2009.
Following an investigation into his relationship with a
prospective recruit, the appellant was charged with four
specifications of failing to obey a lawful general order, in
violation of Article 92, Uniform Code of Military Justice, 10
U.S.C. § 892, by the following actions: engaging in an
inappropriate relationship with AS, a prospective recruit
applicant; providing alcohol to AS, who was under the legal
drinking age of twenty-one; using a Government vehicle for
unauthorized purposes; and, engaging in an inappropriate
relationship with GD, also a prospective recruit applicant.
A special court-martial comprised of members with enlisted
representation convicted the appellant, contrary to his pleas,
of all four specifications and sentenced him to nine months of
confinement, reduction to pay grade E-1, and a bad-conduct
discharge. The CA approved the sentence as adjudged.
2
On initial appeal, the appellant assigned five errors.
Most importantly for our purposes here on remand, the appellant
from the inception of his appeal contended that the military
judge abandoned his impartial role and that the appellant was
thereby denied a fair trial. In support of that assignment of
error (AOE), the appellant relied primarily on the military
judge’s exceptionally lengthy examination of AS, a Government
witness and the subject of two specifications. As further
evidence of the military judge’s partiality, the appellant also
pointed to injudicious comments made by the military judge
during trial, soliciting character evidence over the objection
of trial defense counsel, allowing members to state questions
aloud, engaging in a dialogue with members regarding evidentiary
matters, and allowing improper sentencing argument over defense
objection.
In Kish I, we relied upon the strong presumption that a
military judge is impartial in the conduct of a judicial
proceeding, citing to United States v. Quintanilla, 56 M.J. 37,
44 (C.A.A.F. 2001). Noting that “the military judge needlessly
interjected himself into the examination of witnesses and
engaged in lengthy and largely irrelevant questioning,” we
nevertheless concluded that “his actions were not so egregious
that a reasonable member of the public would question the
legality, fairness and impartiality of the court-martial.” Kish
I, 2012 CCA LEXIS 728 at *6.
Moreover, we noted that the military judge’s most unusual
conduct involved his commandeering the direct examination of AS,
and that this court dismissed one of the two specifications
involving AS for factual insufficiency. Thus we concluded that
even if the military judge had abandoned his impartial role in
his examination of AS, our action setting aside the conviction
involving AS mitigated the possibility of any prejudice. Id. at
6-7.
Upon remand for re-sentencing, the appellant and the CA
agreed that the appellant would elect sentencing by military
judge and waive any administrative discharge board, and in
return the CA would suspend a bad-conduct discharge if adjudged.
On 6 June 2012, the same military judge against whom the
appellant had earlier complained presided over that sentence
rehearing, without challenge or objection by the defense.2 The
2 The Government contends that the appellant’s failure to challenge the
military judge at the resentencing hearing somehow vitiates his claim of
actual or apparent bias at his earlier contested trial. We disagree. Upon
remand for sentencing, the appellant had negotiated a favorable agreement
3
military judge sentenced the appellant to four months of
confinement, reduction to pay grade E-1, and a bad-conduct
discharge.3
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.
The appellant petitioned the CAAF following our action on
his sentencing re-hearing, and subsequently filed a motion to
attach the statements from the two law students. The CAAF
granted his motion to attach, granted the petition, set aside
our decision, and ordered a DuBay hearing to determine what the
trial judge actually said at the PME lecture. The findings of
fact from the DuBay hearing are attached to this opinion as an
Appendix.
Principles of Law
“‘An accused has a constitutional right to an impartial
judge.’” United States v. Martinez, 70 M.J. 154, 157 (C.A.A.F.
2011) (quoting United States v. Butcher, 56 M.J. 87, 90
(C.A.A.F. 2001)). The appellant must clear a “high hurdle” to
prove that a military judge was partial or appeared to be so, as
the law establishes a “strong presumption” to the contrary.
Quintanilla, 56 M.J. at 44.
RULE FOR COURTS-MARTIAL 902, MANUAL FOR COURTS-MARTIAL, UNITED STATES
(2012 ed.) recognizes the constitutional right to an impartial
judge and provides two bases for disqualification of a military
judge. R.C.M. 902(b) enumerates specific circumstances
indicative of actual bias that require disqualification. R.C.M.
902(a) provides for disqualification where the evidence does not
that protected him from a punitive discharge; he had already completed his
confinement and could be compelled to serve no more. His failure to
challenge the military judge at the re-sentencing hearing does not abrogate
his claim of judicial partiality at the earlier trial.
3 The CA approved the sentence and, except for the discharge, ordered it
executed. Having previously affirmed the findings, and with no new
assignments of error, this Court affirmed the sentence as approved by the CA.
Kish II, 2012 CCA LEXIS 682 at *2.
4
establish actual bias, but the circumstances nonetheless warrant
disqualification based upon a reasonable appearance of bias.4
“The appearance standard is designed to enhance public
confidence in the integrity of the judicial system.”
Quintanilla, 56 M.J. at 45 (citing Liljeberg v. Health Services
Acquisition Corp., 486 U.S. 847, 860 (1988)).
“[W]hen a military judge's impartiality is challenged on
appeal . . . the test is whether, taken as a whole in the
context of this trial, a court-martial's legality, fairness, and
impartiality were put into doubt by the military judge's
actions.” Martinez, 70 M.J. at 158 (citation and internal
quotation marks omitted). The appearance of impartiality is
reviewed objectively and is tested under the standard set forth
in United States v. Kincheloe, 14 M.J. 40, 50 (C.M.A. 1982):
“Any conduct that would lead a reasonable man knowing all the
circumstances to the conclusion that the judge's impartiality
might reasonably be questioned is a basis for the judge's
disqualification.” (Citation and internal quotation marks
omitted).
Under Article 46, UCMJ, and MILITARY RULE OF EVIDENCE 614, MANUAL
FOR COURTS-MARTIAL, UNITED STATES (2012 ed.), military judges have
wide latitude to ask questions of witnesses called by the
parties to clear up uncertainties in the evidence or to develop
the facts. United States v. Acosta, 49 M.J. 14, 17-18 (C.A.A.F.
1998). Furthermore, “[n]either Article 46 nor Mil.R.Evid. 614
precludes a military judge from asking questions to which he may
know the witness’ answer; nor do they restrict him from asking
questions which might adversely affect one party or another.”
Id.However, the military judge walks a “tightrope” in
examining a witness. United States v. Ramos, 42 M.J. 392, 396
(C.A.A.F. 1995). He may elicit or clarify relevant information
to assist the court-martial members in their deliberations, but
must do so in a way that “‘scrupulously avoid[s] even the
slightest appearance of partiality.’” Id. (quoting United
States v. Shackelford, 2 M.J. 17, 19 (C.M.A. 1976)). Members
expect trial and defense counsel to be partisan advocates and
will view the presentation of evidence and arguments by counsel
in that light. See United States v. Grandy, 11 M.J. 270, 277
(C.M.A. 1981). On the other hand, they expect the judge to be
4 The appellant has alleged both actual and apparent bias. Upon our de novo
review of the conclusions of law in the Appendix, we are not persuaded that
this military judge bore an actual, personal bias against the appellant, and
thus limit our analysis to the issue of apparent bias under R.C.M. 902(a).
5
impartial, and if he does take sides, “the members can hardly
avoid being influenced substantially by his advocacy.” Id.(emphasis in original).
Discussion
At the direction of the CAAF, we now review Kish I, Kish
II, and the DuBay record in determining whether the trial judge
was disqualified based on his conduct at trial and his post-
trial comments.
We will not re-state here in significant detail the
Findings of Fact (FoF) from the DuBay hearing, which are
captured in the Appendix to this opinion and adopted for the
purposes of this opinion. What is germane to our review and
analysis of this record can instead be briefly summarized. The
trial judge, by his own admission, adopted the persona of a
“hard-charging prosecutor” from the outset of the lecture and
addressed the Marine law students from the perspective of a
seasoned trial counsel. An overarching theme of his lecture was
this: it is very difficult to get convictions in a court-
martial; trial counsel therefore need to be aggressive in
preparing and presenting their case; they need to overwhelm
members with a tremendous volume of evidence; and they need to
pursue convictions with passion and zeal. Additionally, the
military judge communicated a general impression that he
believed trial counsel were underperforming, insufficiently
zealous, or deficient in preparation of their cases.
With these comments as backdrop, we now review the military
judge’s conduct in the appellant’s trial. From his initial
appeal to this court, the appellant has maintained that the
military judge abandoned his neutral and impartial role during
the court-martial, principally through his extensive examination
of AS, the Government’s second witness and the subject of two of
the four specifications. Trial counsel began his direct
examination of AS by asking her 110 questions. Those questions
established both the nature of her social relationship with the
appellant and the fact that the appellant had provided her with
alcohol. At that point, the military judge interrupted the
direct examination and proceeded to ask the next 174 questions.
Although the military judge briefly turned the examination back
over to trial counsel, he cut in again on two occasions, and
ultimately took the direct examination to its close. After the
military judge concluded his examination, he told trial counsel,
“Go ahead,” to which the trial counsel responded, “That is all
the questions I have, sir.” Record at 253. During the direct
6
examination of AS, the military judge asked a total of 234
questions.
Moreover, the substance of the judge’s questions was also
problematic. When he commandeered the direct examination of AS,
she had just begun to recount an incident in which she, the
appellant, and another young woman (CB) were all in the
appellant’s bed at his apartment. It was at this juncture that
the military judge first interrupted, and he inquired in
exhaustive and frequently inane detail into an incident of
uncharged misconduct, in which the appellant engaged in sexual
intercourse with CB in the presence of AS.
Both in sheer number and in content, the military judge’s
questions went beyond what was needed to “clear up
uncertainties” or “develop the facts further.” See Ramos, 42
M.J. at 396. Nor was this the type of “limited exchange”
between military judge and witness that the CAAF found
acceptable in United States v. Foster, 64 M.J. 331, 337
(C.A.A.F. 2007).
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.”
In elbowing the prosecution aside to conduct his own
exhaustive direct examination of AS on the minutiae of an
uncharged sexual act, the military judge fell off the judicial
tightrope and created an appearance of partiality. See Ramos,
42 M.J. at 396.
On the unique facts of this case, we find a nexus between
the military judge’s conduct during the appellant’s trial and
his later comments detailed in the Appendix. Viewed in tandem,
these give rise to an appearance of bias in the appellant’s
case.
7
Remedy
R.C.M. 902(a) does not mandate a particular remedy in
situations where a military judge should have recused or
disqualified himself. In Quintanilla, the CAAF adopted the
three-part Liljeberg test for determining whether a conviction
should be reversed when a judge erroneously fails to recuse or
disqualify himself:
(1) What is the risk of injustice to the parties in
the particular case?
(2) What is the risk that the denial of relief will
produce injustice in other cases?
(3) What is the risk of undermining the public's
confidence in the judicial process?
Quintanilla, 56 M.J. at 80-81 (citing Liljeberg, 486 U.S.
at 864).
First, the risk of injustice to the parties is high.
Judges are invested with extraordinary discretion on countless
matters that have significant consequences for the parties in a
trial. Putting aside for a moment the issue of the direct
examination of AS, the judge on numerous other occasions
commented on the evidence, asked questions of other witnesses,
and ruled upon objections in a manner that may have contributed
to the findings or the sentence in this case. All those
decisions, comments, and actions are called into question by the
appearance of bias.
Secondly, while denial of relief in this case will not
itself produce an injustice in other cases, granting relief will
have the salutary effect of reinforcing the demand for judicial
impartiality.
Thirdly, and most critically, we turn to the question
of the public’s confidence in our judicial process. In
light of the military judge’s conduct during this trial,
coupled with his public remarks, a reasonable member of the
public would conclude that this military judge had shed his
robe of judicial neutrality in the case of this particular
accused. We find that the military judge’s conduct
warrants a remedy to vindicate the public’s confidence in
the military justice system.
8
Conclusion
Accordingly, the findings and sentence are set aside. A
rehearing is authorized. This action renders moot the
appellant’s other assignments of error.
Chief Judge MITCHELL and Judge FISCHER concur.
For the Court
R.H. TROIDL
Clerk of Court
9
Appendix to United States v. Kish
DuBay Hearing: United States v. Kish
Background
On 14 March 2013, the Court of Appeals for the Armed Forces
ordered a hearing pursuant to United States v. DuBay, 37 C.M.R.
411 (C.M.A. 1967), to make findings of fact and conclusions of
law related to what, if any, statements the trial judge made on
or about 21 June 2012, at a Professional Military Education
(PME) meeting with junior officers regarding the practice of
military justice. That hearing concluded on 15 July 2013 at
Marine Corps Base, Quantico.
Evidence Presented: The presiding DuBay judge heard testimony
from the five Marine law students5 who attended the PME, from the
trial judge himself, and from a former Marine judge advocate who
was assigned to the defense office at the time of the PME.
Additionally, the DuBay judge admitted the transcript from a
recusal hearing in United States v. Bremer,6 held one week after
the PME, at which all five Marine law students also testified.
Finally, the DuBay judge admitted a redacted version of a
Preliminary Inquiry Officer (PIO) report ordered by the Chief
Judge, Department of the Navy (CJDoN) to inquire into the PME
lecture. That PIO report contained statements from all five
Marine law students and the trial judge, taken a week after the
PME lecture.
Amended Findings: Upon our review of the record of the hearing,
we approve the DuBay judge’s findings of fact (FoF), with the
exception of FoF 2, 16, 25, 31-34, and 39, which we find to be
clearly erroneous (16)7 or irrelevant for the purposes of the
5 The Marine Corps routinely assigns Marine officers who are currently
attending law school to summer assignments at Marine Corps installations.
These officers include both Law Education Program officers, who have previous
experience as commissioned officers, and student program officers, who have
been commissioned while in law school and for whom these assignments may be
their first active duty experience. We refer to both groups as “Marine law
students.”
6 72 M.J. 624 (N.M.Ct.Crim.App. 2013), remanded to No. 201200472, 2014 CCA
LEXIS 321, unpublished op. (N.M.Ct.Crim.App. 23 Jan 2014).
7 To the extent that FoF 16 suggests that LtCol Palmer’s PME comments did not
address dissatisfaction on the part of Congress and the Commandant of the
Marine Corps relative to the prosecution of courts-martial, we find this FoF
clearly erroneous. See FoF 21 and 23 infra.
10
inquiry (2, 25, 31-34, 39).8 Additionally, we augment the DuBay
judge’s findings with findings of our own. We do so for the
sake of general completeness, but also to explore a perceived
link between the trial judge’s PME lecture and the Heritage
Brief/Unlawful Command Influence (UCI) motion litigated the
previous week in the case of United States v. Howell.9 That
apparent link was highlighted both in a memo from CJDoN and in
one Marine law student’s statement to the PIO,10 but was not
addressed by the DuBay judge. For ease of reading, we have
incorporated the DuBay judge’s findings of fact with our own.11
We derive our additional findings of fact from the original
statements submitted by two Marine law students (Appellate
Exhibit XCVI at 110-13), the statements given to the PIO, the
testimony at the Bremer recusal hearing, and the testimony at
the DuBay hearing itself. Moreover, to the extent necessary to
establish relevant facts, we take judicial notice of the
timeline established in Howell regarding the Heritage Brief and
the UCI motion in that case, as it relates to the issue now
before us.
Findings of Fact
1. In June 2012, Lieutenant Colonel [LtCol] Robert Gregory
Palmer, U.S. Marine Corps, was assigned to the Marine Corps
Recruit Depot (MCRD), Parris Island, South Carolina, as a
military judge in the Southern Circuit, Navy-Marine Corps Trial
Judiciary. At that time, he had been so assigned for
approximately three years. As the military Judge assigned to
MCRD, Parris Island, [LtCol] Palmer presided at almost all
courts-martial held at MCRD, Parris Island, as well as Marine
Corps Air Station (MCAS), Beaufort, South Carolina.
The Howell UCI Motion and the Stay
2. On 11 June 2012, LtCol Palmer, as the trial judge, presided
over an Article 39(a), UCMJ, session in United States v. Howell.
At that hearing, the parties litigated a defense motion alleging
UCI based on the Heritage Brief given by the Commandant of the
8 Additionally, we find FoF 27 to be erroneous in part, but parse that issue
in FoF 35 below.
9 United States v. Howell, No. 201200264, 2014 CCA LEXIS 321, unpublished op.
(N.M.Ct.Crim.App. 22 May 2014).
10 Appellate Exhibit XCVI at 32.
11The DuBay judge’s findings, which have been re-numbered for incorporation,
are those in italics.
11
Marine Corps (CMC) onboard Parris Island on 19 April 2012. In
support of its motion, the defense counsel provided the trial
judge with the video and audio recordings of the Parris Island
brief, and numerous print media articles covering the CMC’s
tour. After argument on the motion, the trial judge denied the
defense motion to dismiss, finding that the defense had not met
its initial burden of showing some evidence of UCI, in that it
demonstrated no nexus between the CMC’s brief and the case at
trial. Id.
3. Following voir dire the next day, the defense renewed its
objection, noting that the members’ responses had established
the “missing” nexus. LtCol Palmer again denied the defense
motion, finding no actual or apparent UCI based on the CMC’s
Heritage Brief. Id. at *18.
4. The defense in Howell filed an extraordinary writ with NMCCA
on 13 June 2012 seeking review of LtCol Palmer’s ruling on the
UCI motion. On 14 June 2012, this court issued a stay in
Howell. Id. at *18-19.
5. Second Lieutenant (2ndLt) AC, a Marine law student assigned
to the defense section at MCRD Parris Island, observed the
litigation of the UCI motion in Howell, and assisted in drafting
the extraordinary writ. AE XCVI at 32, 34.
The Invitation to Provide PME
6. On 19 June 2012, [LtCol] Palmer presided at the arraignment
in United States v. Aboraia. Captain [Capt DC], U.S. Marine
Corps, a student judge advocate assigned to the defense section,
attended the arraignment as a spectator. Because of problems
with the trial counsel’s representation of the United States at
that session, [Capt DC] approached [LtCol] Palmer soon
thereafter and asked if he would provide a [PME] session to the
Marine officer law students (student judge advocates) assigned
to the MCRD, Parris Island, and MCAS, Beaufort law centers.
Footnote omitted.
7. In requesting the training, [Capt DC] asked [LtCol] Palmer
to “provide training and advice to new judge advocates,” or
words to that effect. Although [Capt DC]’ s request was spurred
by his observation of a trial counsel’s problematic presentation
before [LtCol] Palmer, [Capt DC] did not ask [LtCol] Palmer to
give the PME to the student judge advocates from the perspective
of a trial counsel.
8. [Capt DC]’s request came after witnessing the problematic
arraignment and [LtCol] Palmer assumed a certain context to
12
[Capt DC]’s request. Specifically, [LtCol] Palmer believed [Capt
DC] requested a PME on how to be a successful trial counsel and
avoid problems such as those they had both just witnessed.
[LtCol] Palmer agreed to conduct the training and tasked [Capt
DC] with assembling the student judge advocates for the PME.
[LtCol] Palmer believed that [Capt DC] would share the purpose
and context of the training – as [LtCol] Palmer understood it –
with the other student judge advocates.
9. In assembling the group, [Capt DC] told the other student
judge advocates that [LtCol]Palmer would be giving a PME about
what to expect as a judge advocate in the Marine Corps. [Capt
DC] also provided the other student judge advocates a time and
location for the PME.
10. It is part of a military judge’s duties to train the
counsel that appear before that military judge in court. As the
only military judge in the Southern Circuit assigned to MCRD,
Parris Island and MCAS, Beaufort, [LtCol] Palmer had provided
dozens of PME sessions to other counsel during his prior three
years on station as the military judge. There was no evidence
presented at the hearing of any issues with the content of any
PME previously conducted by [LtCol] Palmer.
The PME Lecture
11. [LtCol] Palmer provided the PME on 21 June 2012 in the
courtroom aboard MCAS, Beaufort. Five Marine Corps student
judge advocates attended: [Capt DC], [Capt NC], [2ndLt AC],
[2ndLt DL], and [2ndLt AN]. All five individuals were student
judge advocates on deck at MCRD, Parris Island or MCAS,
Beauport, and all were assigned to the trial counsel, defense
counsel, or legal assistance shops in their summer assignment.
12. The PME lasted from 0800 until 1000. [2ndLt AC] arrived a
few minutes late and fell asleep for brief periods during the
PME, but the remaining student judge advocates were present and
attentive for the entire presentation.
13. At no time before or during the PME did [LtCol] Palmer
provide any context to his comments. After the PME, and in the
course of this matter, [LtCol] Palmer stated he presented the
PME “from the perspective of what it really takes to be a hard-
charging prosecutor” and that during the PME “he used
exaggerations to present the counsel with the mindset of an
aggressive trial counsel.” See AE 88, page 4.
14. [LtCol] Palmer believed that “the context of the course of
instruction were clear and that these comments would be seen as
13
coming from the prospective of a hard-charging trial counsel
seeking justice.” See AE 88, page 5. [LtCol] Palmer did not
intend to teach the PME from the perspective of a military judge
and did not believe that the student judge advocates would view
his comments as such.
15. Despite LtCol Palmer’s failure to provide any context for
his comments, all the law students concur that the PME focused
largely on the role of a trial counsel, how to be effective as a
trial counsel, and how to avoid common trial counsel errors and
deficiencies. AE XCVI at 31, 39, 43, 48-49, 56.
16. [LtCol] Palmer taught the PME from the well of the
courtroom and not the bench, while the student judge advocates
sat a counsel’s tables. He taught with animation, hyperbole,
and irony, using jokes as well as personal anecdotes in an
attempt to keep the student judge advocates attentive and
engaged.
General Parameters of PME Lecture
17. [LtCol] Palmer covered numerous topics during the PME,
including the impending administrative re-organization of Marine
Corps legal services, as well as the substantive military
justice topics of charging and speedy trial. He spoke for
approximately 45 minutes on how to properly complete a charge
sheet, reviewing the form block-by-block.
18. He covered in considerable detail how to fill out each
block, who would typically fill out each block, and the import
of completing each block (i.e., preferral of charges triggering
the R.C.M. 707 requirements). As he discussed each block, LtCol
Palmer mixed in anecdotes and advice from his career, as well as
common mistakes made. AE XCVI at 48-49, 53.
19. LtCol Palmer discussed his perception that the quality of
representation by trial counsel had declined in recent years and
highlighted areas in which he had seen deficiencies. AE XCVI at
43, 53. He used his own experiences as trial counsel to
emphasize how important and difficult the job is and how much
effort prosecutors need to dedicate. He emphasized that trial
counsel must overwhelm their opponents with zeal and thorough
preparation. LtCol Palmer cited examples from recent cases to
illustrate problems with trial counsel. Id. at 43. He told the
law students that trial counsel should be fired if they try ten
cases and get three or four acquittals. Id. at 36, 50.
20. While discussing the duties of trial counsel, LtCol Palmer
spoke at some length about “jury” members. He expressed his
14
frustration with panel members and spoke of them in a mocking
manner: he made those remarks while detailing for the law
students his perception that it is difficult to convince juries
to convict and that trial counsel need to be prepared to
overwhelm the members with evidence.
Specific comments that LtCol Palmer made during the PME.
21. Although the session was not recorded, and recollections
among the six officers in the room differ slightly, the evidence
establishes that LtCol Palmer made the statements contained in
FoF 24, 27, and 30, and also used approximately the following
language: Congress is not happy with the way that the Marine
Corps is handling criminal cases.
22. [LtCol] Palmer made the statement about Congress in the
context of talking about the reorganization of Marine Corps
legal services and proposed changes to the Uniform Code of
Military Justice, including changes to Article 120.
23. In conjunction with his remarks about Congress and the re-
organization of Marine Corps legal services, LtCol Palmer also
discussed the CMC’s recent initiative on sexual assault and
CMC’s dissatisfaction with military justice. AE XCVI at 53-54.
24. During the PME, [LtCol] Palmer made the following
statements:
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.
25. [LtCol] Palmer made each of the [above] statements [. . .]
in the context of the mindset he believes a trial counsel must
have on every case in order to effectively represent the United
States.
26. Most of the Marine law students understood that these
comments were aimed at them as prospective trial counsel and
viewed his remarks in that context. AE XCVI at 31, 39, 43, 53,
15
56. When LtCol Palmer pointed to the defense table and stated
that the accused is guilty if he’s sitting there, the Marine law
students largely understood him to mean that a trial counsel
must adopt that mindset in order to zealously represent the
Government. Id. at 39, 55, 110, 112; AE XCVIII at 142-43.
27. During the PME, [LtCol] Palmer made the following
statements:
a. Jury members are stupid, knuckle-dragging morons that
need to have the drool wiped away from their mouths. I
don’t hate them, I despise them.
b. Juries don’t have to follow the law and they know it.
28. [LtCol] Palmer made the statements in [FoF (30)] in the
context of how he believes a trial counsel must approach meeting
their burden of proof to members beyond a reasonable doubt at
trial. He was attempting to convey that a trial counsel can
approach the burden of proof too lightly; instead a trial
counsel must prove even the most basic of facts to the members.
29. Although some of the law students found LtCol Palmer’s
comments about jury members offensive or surprising, they
generally understood him to be making the point that jury
members are not legal experts or lawyers, do not understand the
law, and don’t have time in trial to become expert on the law,
so that a trial counsel must try to convince them to convict
with an overwhelming volume of evidence. See AE XCVI at 40, 43;
DuBay Hearing Record at 127-28.
30. During the PME, [LtCol] Palmer made the following
statements:
a. It is extremely difficult to convict a military accused
under military law.
b. If you are a trial counsel prosecuting a child
pornography case and the accused is found not guilty, you
will go to hell.
31. [LtCol] Palmer made the statement in [FoF 30] in the
context of how a trial counsel must approach the responsibility
of prosecution.
32. [LtCol] Palmer did not state that a trial counsel needs to
list any charges on the charge sheet just to get the charges
before the members, even if the elements of the charges cannot
be proven, or words to that effect.
16
33. During the PME, [LtCol] Palmer told a story about a past
case in which he acted as trial counsel and the accused received
a less severe result that that which [LtCol] Palmer had desired.
[LtCol] Palmer stated words to the effect that “maybe I’ll just
kill him when he get out [of confinement].”
34. [LtCol] Palmer offered the student judge advocates numerous
opportunities to ask questions during the PME. The student
judge advocates did not ask questions.
35. [LtCol] Palmer did not discuss cases [or] accused, or
issues pending before him.12 He did not discuss his judicial
decision making. He did, however, discuss at least one past
case in which he had presided as military judge, mostly
discussing the defense counsel’s admirable trial performance.
The Aftermath of the PME Lecture
36. During the PME, [2ndLt AC] was bothered by comments made by
[LtCol] Palmer. After the PME, [2ndLt AC] returned to the
defense section where she was assigned and reported her
recollection of the comments to her supervising defense counsel,
including (four Marine Corps Captains), (hereinafter referred to
together as “supervisory defense counsel.)” [2ndLt AC] then
completed an affidavit memorializing her recollection of the PME
as she had not taken notes.
37. In her statement, 2ndLt AC listed those comments that she
found troubling – basically, those specific statements
identified in FoF 24, 27, 30, and 33 supra. AE XCVI at 110-11.
38. Prior to attending the PME, [2ndLt AC] had assisted
supervisory defense counsel in drafting motions heard by [LtCol]
Palmer and an extraordinary writ challenging [LtCol] Palmer’s
ruling in a case. Based on those experiences and other
observations of [LtCol] Palmer in court, [2ndLt AC] had formed
the opinion prior to the PME that [LtCol] Palmer, as a military
judge, was partial to the government.
39. After speaking with [2ndLt AC], supervisory defense counsel
contacted the other student judge advocates who attended the PME
in an attempt to confirm [2ndLt AC’s] account of the PME.
12We find the lined-out portion of the FoF to be clearly erroneous and
decline to adopt it. LtCol Palmer discussed Congressional and CMC
dissatisfaction with the Marine Corps’ prosecution of cases (FoF 21, 23
supra), which were issues pending before him in Howell at the time of his PME
lecture: the case was stayed pending this court’s review of his ruling on the
UCI/Heritage Brief motion.
17
40. In response, 2ndLt AN also gave a written statement, but
the other three declined to do so, in part because of concerns
that the statement from 2ndLt AC mischaracterized the training.
DuBay Hearing Record at 71, 103.
41. LtCol Palmer’s comments during that PME lecture quickly
became a source of considerable controversy and litigation. As
a result of the PME, defense counsel filed a Motion to Recuse
LtCol Palmer in the case of United States v. Bremer. The next
week, LtCol Palmer presided over a lengthy Article 39(a) session
in Bremer that explored the content and tone of his PME
lecture.13 All five Marine law students testified at the Bremer
Article 39(a) session.
42. The CJDoN, ordered a preliminary inquiry into the PME
pursuant to Judge Advocate General Instruction 5803.1D (1 May
2012). That inquiry was conducted in the immediate wake of the
PME lecture and the Bremer recusal hearing. All five Marine law
students and LtCol Palmer provided statements to the PIO, which
are included in the DuBay record.
43. LtCol Palmer left the trial bench in late July 2012.
Differing Recollections as to Content, Context, and Tone
44. Trial counsel in Bremer, the PIO, and the DuBay judge all
treated 2ndLt AC’s recollections skeptically, portrayed her as
somehow biased against LtCol Palmer by her experience in the
defense section, and implied or stated that she was tired,
inattentive, or the only person in the PME lecture who recalled
certain statements.
45. The record, however, confirms that 2ndLt AC’s recollection
as to the content of the statements was largely accurate. From
her initial statement forward, she alleged that LtCol Palmer
made approximately eight controversial statements, broken down
in segments in FoF 21, 24, 27, 30, and 33 supra. Of the eight
statements that she alleged in her initial affidavit, seven are
validated by at least one other officer in the room and almost
all are admitted to by LtCol Palmer. Only one of the eight
statements that 2ndLt AC alleged in her original statement and
subsequent statements is not supported by any other officer in
the room.14
13See Bremer, 72 M.J. at 628 (finding that the judge erred in not recusing
himself and remanding for resentencing).
14See FoF 32 supra. 2ndLt AC alleged that LtCol Palmer stated: “Trial
counsel needs to list any charges on the charge sheet as long as they have
18
46. Rather than biased, 2ndLt AC may simply have been more
alert to the gravity and possible import of LtCol Palmer’s
comments because of her familiarity with the UCI motion in
Howell, litigated the previous week, and the subsequent writ.
In her statement to the PIO, 2ndLt AC identified the remarks
made regarding Congress and the CMC (FoF 21, 23) as particularly
problematic in light of LtCol Palmer’s ruling on the UCI motion.
AE XCVI at 32.
47. Although the Marine law students’ testimony and statements
to the PIO reveal little disagreement about what was actually
said, the law students differ greatly about the context of his
comments.
a. While all five of the student judge advocates thought
the information presented at the PME was helpful to their
future practice, [2ndLt AC] and [2ndLt CN] questioned LtCol
Palmer’s fairness and impartiality after the PME.
b. 2ndLt AC complained immediately with recitation of those
comments she found offensive. In writing those statements
down without any frame of reference to LtCol Palmer’s
lecture topics, 2ndLt AC appears to have lifted several of
LtCol Palmer’s statements out of context. She consistently
maintained throughout the investigation and inquiry that
she doubted his ability to be fair and impartial. AE XCVI
at 30, 35.
c. While [2ndLt CN] thought the majority of the PME was
helpful, he thought that some of [LtCol] Palmer’s comments
during the PME were troubling. For example, [2ndLt CN]
took [LtCol] Palmer’s comment that “an accused is guilty or
he wouldn’t be here” to be [LtCol] Palmer’s personal
opinion.
d. 2ndLt DL recalled the same comments that 2ndLt AC
complained of, but provided more backdrop and context to
the comments. In context, he was not disturbed by the
comments, stating “I did not interpret him to be speaking
about the role of a judge at any time, and I never felt
that there was any partiality displayed concerning his
duties as a judge.” AE XCVI at 56.
some evidence to support them, even if some elements cannot be proven in
order to present the charges to the jury to get a conviction.” The other
Marine law students recall LtCol Palmer discussing the topic of what to
charge and supporting evidence, but all deny that he said to charge offenses
without adequate proof.
19
e. Capt DC and Capt NC failed to recall many of the
controversial comments, and described the training as
helpful in content and unremarkable in tone. DuBay Hearing
Record at 99, 102, 124, 128.
Conclusions of Law
“An accused has a constitutional right to an impartial
judge.” United States v. Butcher, 56 M.J. 87, 90 (C.A.A.F.
2001) (quoting United States v. Wright, 52 M.J. 136, 140
(C.A.A.F. 1999).
The Code of Judicial Conduct: The Department of the Navy has
expressly adopted the American Bar Association Model Code of
Judicial Conduct to the extent that it does not conflict with
the statutes, regulations, or the Department’s rules governing
professional responsibility. JAGINST 5803.1D at 6.
Two sections of the Canons are of particular relevance to this
case. Rule 1.2 of the ABA Model Code provides: “A judge shall
act at all times in a manner that promotes public confidence in
the . . . impartiality of the judiciary, and shall avoid
impropriety and the appearance of impropriety.”
Rule 3.1 provides that “[a] judge may engage in extrajudicial
activities, except as prohibited by law or this Code. However,
when engaging in extrajudicial activities, a judge shall not:
. . . (C) participate in activities that would appear to a
reasonable person to undermine the judge’s independence,*
integrity,* or impartiality* . . . .”
However, the ABA Model Code standards generally are regarded as
principles to which judges should aspire and are enforced
primarily through disciplinary action, rather than through
disqualification. United States v. Quintanilla, 56 M.J. 37, 42-
43 (C.A.A.F. 2001). Actions that violate the Model Code “do not
necessarily provide a basis either for disqualification of a
judge or reversal of a judgment unless otherwise required by
applicable law.” Id. at 43 (citation omitted).
R.C.M. 902: Instead, we turn to R.C.M. 902, which recognizes
the constitutional right to an impartial judge and provides two
bases for disqualification of a military judge. Because R.C.M.
902 parallels the statute governing disqualification of federal
civilian judges, 28 U.S.C. § 455, we consider the standards
developed in the federal civilian courts when addressing
disqualification issues arising under R.C.M. 902 as well as our
military justice case law. Id. at 44.
20
R.C.M. 902(a) provides for a general rule of disqualification
for certain appearances of partiality, even though the evidence
does not establish actual bias. Id. at 45. “The appearance
standard is designed to enhance public confidence public
confidence in the integrity of the judicial system.” Id.
(citing Liljeberg v. Health Services Acquisition Corp., 486 U.S.
847, 860 (1988).
In contrast, R.C.M. 902(b) enumerates specific circumstances
connoting actual bias that require disqualification: those
circumstances largely center on the military judge’s
relationship to a party, or extrajudicial involvement, or
knowledge in a case.
Therefore, R.C.M. 902 requires consideration of disqualification
under a two-step process. The first step asks whether
disqualification is required under any of the specific
circumstances listed in R.C.M. 902(b). If not, we then ask
“whether the circumstances nonetheless warrant disqualification
based upon a reasonable appearance of bias.” Quintanilla, 56
M.J. at 45.
For purposes of our inquiry here, we limit ourselves to the
issue of whether LtCol Palmer demonstrated actual bias in his
comments during the PME lecture. We leave consideration of the
equally important question of apparent bias for resolution in
individual cases.15
Actual bias: R.C.M. 902(b)(1) provides for disqualification
“[w]here the military judge has a personal bias or prejudice
concerning a party . . . .” Several of LtCol Palmer’s
statements, standing alone, raise the issue of whether he
harbors a personal bias or prejudice against the accused at any
court-martial, i.e., referring to accused as “scumbags,”
speaking of the need to “crush” them, remarking that they are
guilty if sitting at court-martial, and noting the difficulty of
securing convictions. (FoF 27b, c, and d.)
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
15In addition to ordering a DuBay hearing in the instant case, the Court of
Appeals for the Armed Forces remanded eleven cases to this court for further
consideration after conclusion of our review here.
21
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. We conclude therefore that the evidence does
not support a determination that LtCol Palmer was actually
biased against accused servicemembers within the meaning of
R.C.M. 902(b). As noted above, we leave the issue of apparent
bias for resolution in individual cases.
22