There are five articles of interest to MJ practitioners.

Army Review Boards and Military Personnel Law Practice and Procedure, this is by Jan Serene, he is a master of these issues so civilian practitioners can gain some good insight here.

Non-Deployable: The Court-Martial System in Combat from 2001 to 2009

Narrowing the Doorway: What Constitutes a Crimen Falsi Conviction under Revised Military Rule of Evidence 609(a)(2)? Interesting, but, “Although witnesses with prior military or civilian convictions are less common in military practice;” I would suggest rare. This is an issue that is so infrequent that you really need to sit down and do some current and in depth research. I appreciate the nice listing as an attachment at the end, a good start. Of course something might not be admissible under this rule but admissible under another.

A View from the Bench: A Military Judge’s Perspective on Objections; a nice primer on the basics. Now if we could just get counsel to follow it. I would have liked a little more emphasis on the motions in-limine practice. I use MiL aggressively. I do this because I’m not always confident the prosecution will properly prepare their witnesses in advance of trial to avoid clearly objectionable matter, properly used they can restrict the prosecution case, and there are times (like an Article 32, UCMJ, hearing) that they can be educational for the client. I will say that my preference is to cite the rule number rather than the type of objection. Generally I prefer the members not know the specific objection. So I think it is quite proper to say “object – 801.” Say 801 so as not to confuse the MJ into thinking you want an R.C.M. 802 session. I must say I wasn’t familiar with the “Gateway to Practice” program. But that seems a good idea. And of course you should always network with other counsel about the MJ if it is someone you have not practiced in front of. They do it for us, we can do it for them. If you are military counsel for a civilian counsel and you know that the civilian has not practiced in front of this MJ before (because you have asked to ensure a fully informed team), don’t be shy about giving up the gouge on the MJ.

The Case Review Committee: Purpose, Players, and Pitfalls. Ah yes, the program intended to garner additional information for a conviction. Anyone accused of something that may be in the FAP is well advised not to cooperate without first talking with counsel. There is a great deal of misapprehension about what this program is among those “clients” of the program. They seem to think it’s there to help them. They don’t seem to realize the impact or import of an NCIS, CID agent being a member of the FAP/CRC. They can say what they like, the CRC and FAP is an investigative arm of law enforcement and the command. I do not see the article address a common problem. The case is in FAP and the court-martial process and the accused is represented by counsel – yet the FAP and CRC continue their activities without consulting counsel. Focus on page 49, Statements, after reading the authors discussion there should be no confusion that a person accused or suspected of something within FAP/CRC jurisdiction should be keeping their mouth tightly shut.

Warrior King: The Triumph and Betrayal of an American Commander in Iraq, by LTC Nathan Sassaman.

Retired Lieutenant Colonel Nathan Sassaman believes in winning.3 He won as West Point’s quarterback, and he preached the virtue of rising after a fall as an Army officer. In Warrior King, Sassaman attempts to win back his public image after involvement in a notorious incident of detainee abuse early in the Iraq War. In early 2004, while commanding 1st Battalion, 8th Infantry Regiment (1-8 Inf.) in Iraq, Sassaman learned that his subordinates had thrown two detainees into the Tigris River and that one of the men allegedly drowned. Sassaman coached his subordinates, “Don’t say anything about the water.” When word of the incident became public, Sassaman was roundly criticized for his deceitful and discreditable response. Sassaman has subsequently argued that he made the right decision and that an unfair Army system punished him for it, but he fails to argue convincingly that withholding information was justifiable. He sets out to counter the damning 2005 article “The Fall of the Warrior King,” which harshly judged him for his response to the detainee incident, but Warrior King is most compelling when he veers from his thesis to critique senior military leaders in Iraq. This review analyzes Sassaman’s thesis that his decision to withhold information was correct but that the Army system betrayed him. This review also suggests how judge advocates can use the book to become better advisors to commanders. Ultimately, I recommend Warrior King to readers interested in the ethical complexities of the tactical counterinsurgency battlefield.

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.

United States v. Cooper, 51 M.J. 247, 250 (C.A.A.F. 1999), but see, United States v. Smith, 52 M.J. 337, 342 (C.A.A.F. 2000)(military judge should not be trying the prosecution’s case).

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.

“I Won’t Participate in an Illegal War”: Military Objectors, the Nuremberg Defense, and the Obligation to Refuse Illegal Orders

United States v. Blazier: So Exactly Who Needs an Invitation to the Dance?

Substantive Crimes and Defenses Lesser Included Offenses Update: United States v. Jones

Searching for Reasonableness—The Supreme Court Revisits the Fourth Amendment

“I’ve Got to Admit It’s Getting Better”*: New Developments in Post-Trial

The Impact of Melendez-Diaz v. Massachusetts on Admissibility of Forensic Test Results at Courts-Martial

Armed for the Attack: Recent Developments in Impeachment Evidence

Annual Review of Developments in Instructions