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States v. Barnes, 60 M.J. 950 (N.M.Ct.Crim.App. 2005), and United States v. Denson, No. 200400048, 2005 CCA LEXIS 243, unpublished op.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.