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.

Laurie L. Levenson (Loyola Law School Los Angeles) has posted Prosecutorial Soundbites: When Do They Cross the Line? (Georgia Law Review, Forthcoming) on SSRN. Here is the abstract: Even good prosecutors can cross the line with media soundbites. Especially in high-profile cases, prosecutors must assess if their pretrial remarks about a case meet their ethical obligations. In Gentile v. Nevada State Bar, 501 U.S. 1030 (1991), the United States Supreme Court held that while lawyers have the First Amendment right to make comments to the press, they do not have the right to make comments that have a “substantial likelihood of materially prejudicing an adjudicative proceeding.” Although ethical codes have adopted this broad standard, many have failed to identify more specifically when a prosecutor’s remarks pose a substantial likelihood of having such a prejudicial effect. Using 28 C.F.R. § 50.2 as a guide, this article seeks to identify those “hot-button” areas.

The military’s case against a Coast Guard captain accused of violating military code wrapped up Thursday with the officer’s lawyers admitting their client committed adultery and fraternized with enlisted women — but, they said, his behavior was not criminal.

Anchorage Daily News reports.

Here are some factors that will be considered by the IO, the SJA, the CA, and . . .

While adulterous conduct that is private and discreet in nature may not be service discrediting by this standard, under the circumstances, it may be determined to be conduct prejudicial to good order and discipline. Commanders should consider all relevant circumstances, including but not limited to the following factors, when determining whether adulterous acts are prejudicial to good order and discipline or are of a nature to bring discredit upon the armed forces: (a) The accused’s marital status, military rank, grade, or position; (b) The co-actor’s marital status, military rank, grade, and position, or relationship to the armed forces; (c) The military status of the accused’s spouse or the spouse of co-actor, or their relationship to the armed forces; (d) The impact, if any, of the adulterous relationship on the ability of the accused, the co-actor, or the spouse of either to perform their duties in support of the armed forces; (e) The misuse, if any, of government time and resources to facilitate the commission of the conduct; (f) Whether the conduct persisted despite counseling or orders to desist; the flagrancy of the conduct, such as whether any notoriety ensued; and whether the adulterous act was accompanied by other violations of the UCMJ; (g) The negative impact of the conduct on the units or organizations of the accused, the co-actor or the spouse of either of them, such as a detrimental effect on unit or organization morale, teamwork, and efficiency; (h) Whether the accused or co-actor was legally separated; and (i) Whether the adulterous misconduct involves an ongoing or recent relationship or is remote in time.

The “rule of lenity” “requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them.”

From Levin, Daniel and Stewart, Nathaniel, Wither the Rule of Lenity, Engage, November 16, 2009. This is a claim or objection I have used from time to time, not always successfully. Typically I’m using it as an argument regarding application of an R.C.M. or Mil. R. Evid., an argument by analogy I suppose. Another way to express this would be that where there is an ambiguity the ambiguity should be construed against the writer. Perhaps there is some hope?

In 2008, in United States v. Santos, the Supreme Court issued a plurality opinion holding that a key term in a federal money laundering statute was ambiguous and applied the rule of lenity to resolve the ambiguity in the defendants’ favor. The plurality involved just such a coalition of conservative and liberal Justices (Justices Scalia, Thomas, Ginsburg, and Souter; with Justice Stevens writing separately and agreeing that the rule should apply), raising the question of whether the rule may be entering a period of somewhat greater application…

Justice Scalia wrote the majority opinion in Santos.

Under a long line of our decisions, the tie must go to the defendant. The rule of lenity requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them. This venerable rule not only vindicates the fundamental principle that no citizen should be held accountable for a violation of a statute whose commands are uncertain, or subjected to punishment that is not clearly prescribed. It also places the weight of inertia upon the party that can best induce Congress to speak more clearly and keeps courts from making criminal law in Congress’s stead. When interpreting a criminal statute, we do not play the part of a mind reader. In our seminal rule-of-lenity decision, Chief Justice Marshall rejected the impulse to speculate regarding a dubious congressional intent. “[P]robability is not a guide which a court, in construing a penal statute, can safely take.” United States v. Wiltberger, 5 Wheat. 76, 105 (1820). And Justice Frankfurter, writing for the Court in another case, said the following:“When Congress leaves to the Judiciary the task of imputing to Congress an undeclared will, the ambiguity should be resolved in favor of lenity.” Bell v. United States, 349 U. S. 81, 83 (1955).

Slip op. at 6-7.

Army Times and AP report that an AWOL soldier wins stay of Canadian deportation.

Canada’s Federal Court says the country’s refugee board must reconsider the case of a lesbian who deserted the U.S. Army.

Army Times and AP reports a Soldier charged with making threat at school.

The Pettis County prosecutor has charged a soldier who had been reported missing from Fort Leonard Wood with making a terrorist threat at a Sedalia high school.

Army Times and AP reports that a Fort Campbell soldier has been charged with refusing a gate search.

The military says a Fort Campbell soldier was charged after refusing to allow a search of his vehicle and causing a gate into the installation to be shut down.