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Marine judge who called defendants 'scumbags' did not show bias, court finds

Jun. 23, 2014 - 06:00AM   |  
A millitary appeals court has found that a judge's comments to law students showed ' exceptionally poor judgment' and raised serious questions about the judge's impartiality, but did not constitute actual bias.
A millitary appeals court has found that a judge's comments to law students showed ' exceptionally poor judgment' and raised serious questions about the judge's impartiality, but did not constitute actual bias. (Getty Images/iStockphoto)
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A military appeals court tossed out a Marine recruiter’s sexual assault conviction and nine-month sentence this month after finding that a military judge peppered a witness with leading questions.

The court also found that the judge, Lt. Col. Robert “Greg” Palmer, showed “exceptionally poor judgment” during a two-hour training lecture in which he said all defendants were guilty and denounced them as “scumbags.” However, the court found that Palmer’s remarks did not prove actual bias, and declined to make a decision affecting the 11 other cases still under appeal as a result of his comments.

Palmer first came under scrutiny after his now-infamous 2012 lecture to five law students at Marine Corps Air Station Beaufort, South Carolina. Over the course of several hours, he informed the class that Congress was not happy with the way the Corps was handling criminal cases, that jurors were “stupid, knuckle-dragging morons that need to have the drool wiped away from their mouths,” and that military prosecutors who lose child pornography cases will go to hell.

The lecture came shortly after Marine Corps Commandant Gen. Jim Amos kicked off his “Heritage Brief” tour, in which he told Marines that 80 percent of sexual assault accusations were legitimate and that troops accused of wrongdoing had no place in the Corps. In a fall 2012 sexual assault case involving Marine Staff Sgt. Stephen Howell, Palmer refused to grant a defense motion claiming Amos’ remarks created the appearance of unlawful command influence; the Navy-Marine Corps Court of Criminal Appeals ruled last month that the judge erred in that ruling, and overturned Howell’s 18-year sentence.

A court review of Palmer’s conduct centered around the case of Staff Sgt. Dustin Kish, a recruiter from upstate New York who was convicted in June 2012 of having an inappropriate relationship with an underage female recruit. During the military prosecutor’s cross-examination of the alleged victim, Palmer interrupted repeatedly, according to court documents, asking a total of 234 questions that went beyond the scope of the charges.

“[An] observer may well have concluded that, by hijacking the direct examination of [the alleged victim], the military judge was telegraphing a message that the trial counsel was not aggressive enough and was not overwhelming the members [of the jury] with an avalanche of evidence, as he exhorted the Marine law students to do,” wrote Navy Capt. Moira Modzelewski in her June 17 ruling on the Kish case for the NMCCA.

Palmer left the bench later that year amid controversy, and the Court of Appeals for the Armed Forces ordered a 2013 fact-finding hearing into the implications of his remarks. In an attachment to the Kish case, Modzelewski discussed the findings of that hearing.

The question, she said, was one of tone and context, noting that the Marine law students who attended the lecture disagreed on when Palmer was using hyperbole to make a point and when he was voicing personal opinions, rather than instructing. Palmer had said he was adopting the persona of a “hard-charging prosecutor” rather than a military judge for the lecture, the students reported.

Because of these things, Modzelewski said the court found the remarks evidence of poor judgment that raised serious questions, rather than actual bias.

“We are convinced that Lt. Col. Palmer intended his remarks to convey to the law students the perspective that he believed they must have to succeed as trial counsel,” she wrote. “Said differently, we are convinced that he was voicing not his own biases or prejudices, but instead a minsdset that he believes a junior counsel must adopt to be a tenacious and zealous advocate.”

The appeals court will consider the remaining cases under appeal because of Palmer’s remarks on a case-by-case basis to determine whether they were affected by the appearance of bias, she wrote.

Kish’s attorney, Navy Lt. Cmdr. Ryan Mattina, said the ruling was a mixed victory at best.

“It’s obviously good for my client,” he said. “More than that, I think the court was pretty restrictive.”

For those with cases still under review, the decision is cause for consternation. A defendant in one of the 11 cases, who asked that his name be withheld for fear of reprisal, said his confidence in the military justice system had plummeted as a result of the recent decision.

“It didn’t make any sense to me,” he said. “I still hope that my case is overturned and I’m able to move on from this and put it behind me. But even if they overturn the case, it’s taken time that I can’t get back.”

As for Palmer, it appeared his career would not suffer amid the chaos that ensued from his lecture. In fact, he was slated to become regional defense counsel for the eastern region, overseeing nearly all Marine Corps defense attorneys on the East Coast. But he was quietly reassigned this month to the eastern area counsel office at Camp Lejeune, North Carolina, officials confirmed. Marine Corps spokesman Capt. Ty Balzer said the last-minute switch was unrelated to the recent court rulings, and was instead a routine decision based on the current needs of the Marine Corps.

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