In the July Army Lawyer Judge McDonald has some comments based on his first year on the bench. (I have noted over the years that it takes most judges about a year to get their relative bearing.) I think we can all echo his comments and find a myriad of examples from our own and other cases. What I wanted to comment on though was something in the section about keeping track. If this is not what Judge McDonald does in trial or had not meant to convey then I’ll be the first to apologize, but . . .
I have presided over more than a few judge-alone cases where I have asked more questions than the trial counsel, including asking witnesses about elements that were not covered by the Government.
At page 39 (emphasis added).
This reads as if the military judge intrudes himself to ask questions intended to elicit facts and testimony to support a finding on one or elements. In other words the “second” trial counsel role. To paraphrase:
[I] note at the outset that this [reads as if this] military judge [might be] more aggressive in his use of "clarifying questions" than many judges would dare. . . .In the military, a judge may not abandon his role as an impartial party and assist in the conviction of a specific accused."
United States v. Reynolds, 24 MJ 261, 264 (C.M.A. 1987).
A military judge has a difficult balancing act which in Ramos, the court called the judges’ tight-rope and the maintaining of the “full fulcrum.”
This Court has commented on the tightrope over which a judge must tread in assuring, on the one hand, that court-martial members are provided the information that they need, while, on the other, "scrupulously avoiding even the slightest appearance of partiality." United States v. Shackelford, 2 M.J. 17, 19 (CMA 1976); see United States v. Dock, 40 M.J. 112 (CMA 1994); United States v. Clower, 23 U.S.C.M.A. 15, 48 C.M.R. 307 (1974).
United States v. Ramos, 42 M.J. 392, 396 (C.A.A.F. 1995). And:
There is a strong presumption that a military judge is impartial in the conduct of judicial proceedings. "When a military judge’s impartiality is challenged on appeal, the test is whether, taken as a whole in the context of [the] trial, [the] court-martial’s legality, fairness, and impartiality were put into doubt by the military judge’s actions." We apply this test from the viewpoint of the reasonable person observing the proceedings. Failure to object at trial to alleged partisan action on the part of a military judge may present an inference that the defense believed that the military judge remained impartial.
United States v. Foster, 64 M.J. 331, 333 (C.A.A.F. 2007).
Here is a potential teaching point for defense counsel. We all know judges who are perceived to put their thumb on the scales and help out trial counsel (and trial counsel have similar perceptions about other judges helping the defense). Let’s take a look at some other cases. And defense counsel should remember it is OK to object if done in a professional and tactful manner. I have found a need to do that several times. If the defense doesn’t object it’s going to be a waiver/plain error/IAC issue potentially.
[M]military practice and procedure expressly provide for questioning of witnesses by a military judge (see Mil. R. Evid. 614(b), Manual, supra), and our case law requires that it be done in a fair and impartial manner. . . . the mere fact that the answers to these questions may help or hurt one party’s case does not suggest partiality, especially where the military judge makes clear his neutral purpose in asking these questions.
Mil. R. Evid. 614(b) is apparently broad:
Interrogation by the court-martial. The military judge or members may interrogate witnesses, whether called by the military judge, the members, or a party.
As to the military judge in the Cooper case, the Air Force Court of Criminal Appeals had noted:
There was no objection, on the record, to any of the judge’s comments–therefore, once again, we must approach this issue with a "plain error" analysis. We note at the outset that this military judge was more aggressive in his use of "clarifying questions" than many judges would dare. However, in the absence of objection on the record, it is very difficult to find plain error.
51 M.J. at 249.
Several reasons exist for our conclusion that this is not an extraordinary case requiring reversal of appellant’s conviction. First, defense counsel lodged no objection to the military judge’s curative instructions on the grounds that the judge’s comments further evidenced his bias for the Government. See RCM 801(g) (effect of failure to raise defenses or objections). Moreover, he made no motion to disqualify the military judge from continuing to sit in this case on the basis of these judicial remarks. Third, the judge’s reprimand, although probably unjustified and certainly improper before the members, was no more than a mild rebuke of defense counsel ("having halfway chewed him out"). Finally, the now-challenged comments were couched within unequivocal instructions from the judge protecting appellant from any impermissible use of his comments.
51 M.J. at 250.
Questioning the Witnesses. A military judge must scrupulously avoid "even the slightest appearance of partiality." A military judge’s "influence . . . is necessarily and properly of great weight," and his "last word is apt to be the decisive word." On the other hand, because military judges are more than "mere referees," it is appropriate for them to take an active part in the trial. Thus, while military judges may not become partisan advocates, they may and "sometimes must ask questions . . . to clear up uncertainties in the evidence or to develop the facts further."
51 M.J. at 253 (Gierke, J., concurring inpart and in the result).
It seems to me from the cases (mainly members cases) that there are several common threads: a military judge does not err when asking questions to “clarify factual uncertainties,”or “clarify ambiguity,” and a military judge does not err if also seen to be acting in a objectively “fair and impartial manner,” and the defense better object. See, Cooper, supra; Ramos, supra, United States v. McIlwain, 66 M.J. 312, 314 (C.A.A.F. 2008) (whether military judge should have recused self is viewed objectively looking at the totality of the circumstances). However, a military judge may err if asking questions to solicit facts to support the elements of the offense. On the one hand the military judge is a facilitator on the other a trial counsel.
We regularly tell members that it is not their job to aid one side or the other, that there are not there to fill in holes in the case. To a large degree there is a level of tolerance from both sides especially with new counsel. However, the fact that counsel are new and inexperienced is not a reason for the military judge to become an additional counsel. Military judges acting as fact-finders ought to subject themselves to a similar admonishment as we give members.