Impartiality on the bench

Yesterday the U.S. Navy-Marine Corps Court of Criminal Appeals handed down its latest decision in the long-running case of United States v. Kish. The court found that the military judge had abandoned his impartiality by such acts as commandeering the examination of witnesses, putting 234 (n.b. this is not a typo) questions to one witness. The court described some of these questions as "inane." The judge also made highly questionable remarks at a professional military education lecture in which he commented that convicted personnel needed to be "crushed." At least 11 other cases raise issues about the judge's lecture.

Michael Doyle of the McClatchy Washington Bureau writes that the judge is no longer serving on the bench:

Last month, [Judge (Lt. Col.) Robert G.] 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.

The court's findings of fact recite that Judge Palmer "left the trial bench" a month after the lecture. Marine Corps judges do not have fixed terms of office by either statute or regulation; they are at-will judges, as are Navy and Air Force military judges (including the appellate military judges of the Navy-Marine Corps Court of Criminal Appeals). There is no indication that Judge Palmer was removed for cause or afforded the procedural protections associated with disciplinary action.

Oddly, the court declined to identify its unanimous opinion as binding precedent, indicating instead that it could be cited as "persuasive authority" under the court's rules.