The NMCCA takes the opportunity to censure the trial judge for injudicious comments the judge made in this case.
Despite the military judge's repeated invitations on the record, we decline to disturb the court-martial's verdict. We will, however, take this opportunity to once again express our concern with the comments made by, and lack of judicial deportment exhibited by, this military judge during his trials. See United States v. Barnes, 60 M.J. 950 (N.M.Ct.Crim.App. 2005), and United States v. Denson, No. 200400048, 2005 CCA LEXIS 243, unpublished op. (N.M.Ct.Crim.App. 20 Jul 2005).
The NMCCA explains more fully:
The record is replete with needless comments and arrogant behavior by the military judge. The military judge grilled potential members, openly questioned the integrity of a potential member without sufficient basis, characterized as "imbecilic" a convening authority's conduct in the case, openly contemplated contempt proceedings against a former panel member, and criticized a witness' decision to smoke a cigarette. Record at 65, 189, 201, 243-44, and 312. More troubling to us is the military judge's goading of the military counsel by his incessant sarcasm, and his pompous condescension towards them, often in the presence of the members. Id. at 80, 128-29, 130-32, 138, 164, 190, 191, 200, 249, 267, 286, 303, 306, 331, 355, 387, 397, 399, 424, 445, 454, 463, 466, 468-69, 481, 510-11, 550-52, 573, and 575.
The sentence is this case was adjudged on 31 July 2003. The sentence in the Barnes case was adjudged on 9 September 2003. One wonders why the court found it necessary to censure the trial judge for actions that occurred more than 4 years ago, especially in light of the previous censures. I note there is no discussion of the fact that it took over four years from the time sentence was adjudged until the NMCCA rendered it's decision.
4 comments:
I can think of three possible reasons offhand for addressing the trial judge's conduct even at this late date:
One, the conduct may have been assigned as an error, or have been fairly encompassed by some other assignment of error. Were I an appellate judge reviewing the case, I might feel obliged to address the issue so that the appellant, and CAAF, would know that my "bottom-line" disposition took the trial judge's conduct into account.
Two, the trial judge may still be on the bench. It's not unheard of for a military judge to serve more than one tour -- sometimes even consecutive tours.
Three, I might write about the issue as a means of drawing a line for future jurists. You would hope that some of this behavior would be so obviously inappropriate that no one would ever dream of doing anything remotely similar ... but, as the facts of the case show, that hope would be misplaced.
I can agree with all three of your points. I certainly would be concerned if this judge were still on the bench after showing on several occasions such an amazing lack of judicial temperament. But the NMCCA censured this judge on several other occasions. Although that doesn't mitigate the inappropriateness of his comments, it just seemed like piling on when there were other issues the NMCCA did not note--namely the outrageous amount of time it took from the date the sentence was adjudged until the NMCCA rendered its opinion. I also realize that the delay may not have been the court's fault. Nevertheless, not talking about an elephant in the house is a bit strange.
Certainly you'll hear no argument from me about your concerns regarding this judge.
As for the CCA's prior writings -- as you note in your OP, those cases were decided in 2005. The institutional memory of the court may not include the fact that those cases were written about this judge. I'm not saying the connection is beyond the appellate court's ability to make; but from time to time such things do slide by.
As for the four-year lag ... if it's an "elephant in the house," it's not the first, or even the largest. I won't say such things shouldn't be addressed, but at this point, I'm not overly surprised if they aren't, especially if not assigned as error.
I believe the MJ in question is still an active trial-level MJ, although in a different circuit now.
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