Military court probes judical bias, overturns conviction

McClatchy Washington BureauJune 17, 2014 

A military appeals court on Tuesday blasted a former Marine Corps trial judge for “exceptionally poor judgment” and overturned a court-martial conviction as a result.

In a much-anticipated decision, the U.S. Navy-Marine Corps Court of Criminal Appeals said bellicose statements made by Lt. Col. Robert G. Palmer “invite questions regarding judicial temperament and professionalism.”

Combined with Palmer’s trial actions during the court martial of former Marine Corps Staff Sgt. Dustin D. Kish, the appeals court said Palmer’s statements necessitated overturning Kish’s conviction and sentence.

“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,” the appellate court stated.

Palmer’s statements, made in June 2012, to young Marine Corps officers, included referring to an accused as “scumbag,” speaking of the need to “crush” them, and remarking that they are guilty if sitting at court-martial. Palmer was speaking amid the military’s campaign against sexual assault.

Palmer’s statements, once come to light, prompted numerous bias claims by defense attorneys. Ultimately, in a case filed by Kish, the the U.S. Court of Appeals for the Armed Forces ordered a special hearing to get to the bottom of exactly what was said.

Palmer oversaw the trial of Kish, a former recruiter from New York state who was convicted of four counts related to engaging in “inappropriate” relationships with two female prospective recruits.

The appellate court was harsh in how it characterized the way Palmer handled Kish’s trial. During examination of one witness, the court noted, Palmer “commandeered” the questioning and ended up asking 234 questions himself; some of which, the court said, involved “exhaustive and frequently inane detail.”

“In elbowing the prosecution aside to conduct his own exhaustive direct examination...the military judge fell off the judicial tightrope and created an appearance of partiality,” the court said.

At the same time, the appellate court concluded it could not find actual bias in what Palmer said in his controversial talk to junior attorneys.

“We are convinced he was voicing not his own biases or prejudices, but instead a mindset that he believes a junior officer must adopt to be a tenacious and jealous advocate,” the appellate court reasoned.

The appellate court said the question of an appearance of bias would now have to be resolved on a case by case basis. At least 11 such cases have been forwarded to the U.S. Navy-Marine Corps Court of Criminal Appeals.

Last month, Palmer was initially given the new assignment of being the Marine Corps’ regional defense counsel for the eastern region. The new assignment would have put Palmer in charge of about 30 defense attorneys at Marine Corps bases in North Carolina and South Carolina.

Because of what a Marine Corps spokesman, Capt. Ty Balzer, described Tuesday as “manpower issues at Camp Lejeuene,” Palmer ended up being assigned to the Eastern Area Counsel's Office instead of taking over as the regional defense counsel.

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