UNITED STATES NAVY-MARINE CORPS 

COURT OF CRIMINAL APPEALS

WASHINGTON, D.C.

 

Before

M.D. MODZELEWSKI, F.D. MITCHELL, J.A. FISCHER

Appellate Military Judges

 

UNITED STATES OF AMERICA

 

v.

 

DUSTIN D. KISH

STAFF SERGEANT (E-6), U.S. MARINE CORPS

 

NMCCA 201100404

SPECIAL COURT-MARTIAL 

 

Sentence Adjudged: 6 June 2012. 

Military Judge: LtCol Robert G. Palmer, USMC. 

Convening Authority: Commanding Officer, First Marine Corps 

District, Eastern Recruiting Region, Garden City, NY. 

Staff Judge Advocate's Recommendation: Col E.R. Kleis, 

USMC. 

For Appellant: LCDR Ryan C. Mattina, JAGC, USN. 

For Appellee: Maj Paul Ervasti, USMC. 

 

17 June 2014 

 

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OPINION OF THE COURT 

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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS 

PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2. 

 

MODZELEWSKI1, Chief Judge: 

This case is before us for a third time. We begin with a 

brief recitation of this case’s procedural posture. In our 

initial decision, United States v. Kish (Kish I), No. 201100404, 

2012 CCA LEXIS 728 (N.M.Ct.Crim.App. 29 Mar 2012) (per curiam), 

we set aside a finding of guilty as to one specification, 

dismissed that specification, and affirmed the remaining 

 

1 Former Chief Judge Modzelewski participated in the decision of this case 

prior to detaching from the court. 
2 

findings of guilty. We also set aside the sentence and 

authorized a rehearing. Following that rehearing, we affirmed 

the sentence as approved by the convening authority (CA). 

United States v. Kish (Kish II), No. 201100404, 2012 CCA LEXIS 

682 (N.M.Ct.Crim.App. 31 Aug 2012) (per curiam). After filing a 

petition in the Court of Appeals for the Armed Forces (CAAF), 

the appellant subsequently filed a motion to attach two 

statements. Those statements were from two Marine junior 

officers who had attended a training session given by the 

military judge about two weeks after the appellant’s 

resentencing hearing. 

The CAAF granted the appellant’s motion to attach, granted 

the petition, set aside this court’s decision in Kish II, and 

ordered a hearing pursuant to United States v. DuBay, 37 C.M.R. 

411 (C.M.A 1967), to “make findings of fact and conclusions of 

law related to what, if any, statements the military judge made 

on or about June 21, 2012, at a Professional Military Education 

meeting with junior officers regarding the practice of military 

justice.” United States v. Kish (Kish III), 72 M.J. 158 

(C.A.A.F. 2013) (summary disposition). The DuBay hearing 

concluded on 15 July 2013, and the record was subsequently 

docketed with this Court for the third time. Additional facts 

regarding the procedural posture of this case are incorporated 

below. 

Factual and Procedural Background

The appellant was a canvassing recruiter assigned to 

Recruiting Substation (RSS) Oswego, New York, in 2009. 

Following an investigation into his relationship with a 

prospective recruit, the appellant was charged with four 

specifications of failing to obey a lawful general order, in 

violation of Article 92, Uniform Code of Military Justice, 10 

U.S.C. § 892, by the following actions: engaging in an 

inappropriate relationship with AS, a prospective recruit 

applicant; providing alcohol to AS, who was under the legal 

drinking age of twenty-one; using a Government vehicle for 

unauthorized purposes; and, engaging in an inappropriate 

relationship with GD, also a prospective recruit applicant. 

A special court-martial comprised of members with enlisted 

representation convicted the appellant, contrary to his pleas, 

of all four specifications and sentenced him to nine months of 

confinement, reduction to pay grade E-1, and a bad-conduct 

discharge. The CA approved the sentence as adjudged. 
3 

 On initial appeal, the appellant assigned five errors. 

Most importantly for our purposes here on remand, the appellant 

from the inception of his appeal contended that the military 

judge abandoned his impartial role and that the appellant was 

thereby denied a fair trial. In support of that assignment of 

error (AOE), the appellant relied primarily on the military 

judge’s exceptionally lengthy examination of AS, a Government 

witness and the subject of two specifications. As further 

evidence of the military judge’s partiality, the appellant also 

pointed to injudicious comments made by the military judge 

during trial, soliciting character evidence over the objection 

of trial defense counsel, allowing members to state questions 

aloud, engaging in a dialogue with members regarding evidentiary 

matters, and allowing improper sentencing argument over defense 

objection. 

 In Kish I, we relied upon the strong presumption that a 

military judge is impartial in the conduct of a judicial 

proceeding, citing to United States v. Quintanilla, 56 M.J. 37, 

44 (C.A.A.F. 2001). Noting that “the military judge needlessly 

interjected himself into the examination of witnesses and 

engaged in lengthy and largely irrelevant questioning,” we 

nevertheless concluded that “his actions were not so egregious 

that a reasonable member of the public would question the 

legality, fairness and impartiality of the court-martial.” Kish 

I, 2012 CCA LEXIS 728 at *6. 

Moreover, we noted that the military judge’s most unusual 

conduct involved his commandeering the direct examination of AS, 

and that this court dismissed one of the two specifications 

involving AS for factual insufficiency. Thus we concluded that 

even if the military judge had abandoned his impartial role in 

his examination of AS, our action setting aside the conviction 

involving AS mitigated the possibility of any prejudice. Id. at 

6-7. 

Upon remand for re-sentencing, the appellant and the CA 

agreed that the appellant would elect sentencing by military 

judge and waive any administrative discharge board, and in 

return the CA would suspend a bad-conduct discharge if adjudged. 

On 6 June 2012, the same military judge against whom the 

appellant had earlier complained presided over that sentence 

rehearing, without challenge or objection by the defense.2 The 

 

2 The Government contends that the appellant’s failure to challenge the 

military judge at the resentencing hearing somehow vitiates his claim of 

actual or apparent bias at his earlier contested trial. We disagree. Upon 

remand for sentencing, the appellant had negotiated a favorable agreement 
4 

military judge sentenced the appellant to four months of 

confinement, reduction to pay grade E-1, and a bad-conduct 

discharge.3 

Two weeks after the sentence rehearing, on 21 June 2012, 

the military judge presented a Professional Military Education 

(PME) lecture to five “summer funners,” Marine law school 

students on active duty for the summer. In his two-hour 

lecture, the military judge spoke at length about the 

responsibilities of trial counsel and for a shorter period of 

time about defense counsel duties. Two of the officers who 

attended the PME were troubled by some of his comments, and 

drafted statements summarizing those particular comments. 

The appellant petitioned the CAAF following our action on 

his sentencing re-hearing, and subsequently filed a motion to 

attach the statements from the two law students. The CAAF 

granted his motion to attach, granted the petition, set aside 

our decision, and ordered a DuBay hearing to determine what the 

trial judge actually said at the PME lecture. The findings of 

fact from the DuBay hearing are attached to this opinion as an 

Appendix. 

Principles of Law 

 

 “‘An accused has a constitutional right to an impartial 

judge.’” United States v. Martinez, 70 M.J. 154, 157 (C.A.A.F. 

2011) (quoting United States v. Butcher, 56 M.J. 87, 90 

(C.A.A.F. 2001)). The appellant must clear a “high hurdle” to 

prove that a military judge was partial or appeared to be so, as 

the law establishes a “strong presumption” to the contrary. 

Quintanilla, 56 M.J. at 44. 

 

RULE FOR COURTS-MARTIAL 902, MANUAL FOR COURTS-MARTIAL, UNITED STATES

(2012 ed.) recognizes the constitutional right to an impartial 

judge and provides two bases for disqualification of a military 

judge. R.C.M. 902(b) enumerates specific circumstances 

indicative of actual bias that require disqualification. R.C.M. 

902(a) provides for disqualification where the evidence does not 

 

that protected him from a punitive discharge; he had already completed his 

confinement and could be compelled to serve no more. His failure to 

challenge the military judge at the re-sentencing hearing does not abrogate 

his claim of judicial partiality at the earlier trial. 

3 The CA approved the sentence and, except for the discharge, ordered it 

executed. Having previously affirmed the findings, and with no new 

assignments of error, this Court affirmed the sentence as approved by the CA.

Kish II, 2012 CCA LEXIS 682 at *2. 
5 

establish actual bias, but the circumstances nonetheless warrant 

disqualification based upon a reasonable appearance of bias.4 

“The appearance standard is designed to enhance public 

confidence in the integrity of the judicial system.” 

Quintanilla, 56 M.J. at 45 (citing Liljeberg v. Health Services 

Acquisition Corp., 486 U.S. 847, 860 (1988)). 

 “[W]hen a military judge's impartiality is challenged on 

appeal . . . the test is whether, taken as a whole in the 

context of this trial, a court-martial's legality, fairness, and 

impartiality were put into doubt by the military judge's 

actions.” Martinez, 70 M.J. at 158 (citation and internal 

quotation marks omitted). The appearance of impartiality is 

reviewed objectively and is tested under the standard set forth 

in United States v. Kincheloe, 14 M.J. 40, 50 (C.M.A. 1982): 

“Any conduct that would lead a reasonable man knowing all the 

circumstances to the conclusion that the judge's impartiality 

might reasonably be questioned is a basis for the judge's 

disqualification.” (Citation and internal quotation marks 

omitted). 

Under Article 46, UCMJ, and MILITARY RULE OF EVIDENCE 614, MANUAL 

FOR COURTS-MARTIAL, UNITED STATES (2012 ed.), military judges have 

wide latitude to ask questions of witnesses called by the 

parties to clear up uncertainties in the evidence or to develop 

the facts. United States v. Acosta, 49 M.J. 14, 17-18 (C.A.A.F. 

1998). Furthermore, “[n]either Article 46 nor Mil.R.Evid. 614 

precludes a military judge from asking questions to which he may 

know the witness’ answer; nor do they restrict him from asking 

questions which might adversely affect one party or another.” 

Id. 

However, the military judge walks a “tightrope” in 

examining a witness. United States v. Ramos, 42 M.J. 392, 396 

(C.A.A.F. 1995). He may elicit or clarify relevant information 

to assist the court-martial members in their deliberations, but 

must do so in a way that “‘scrupulously avoid[s] even the 

slightest appearance of partiality.’” Id. (quoting United 

States v. Shackelford, 2 M.J. 17, 19 (C.M.A. 1976)). Members 

expect trial and defense counsel to be partisan advocates and 

will view the presentation of evidence and arguments by counsel 

in that light. See United States v. Grandy, 11 M.J. 270, 277 

(C.M.A. 1981). On the other hand, they expect the judge to be 

 

4 The appellant has alleged both actual and apparent bias. Upon our de novo

review of the conclusions of law in the Appendix, we are not persuaded that 

this military judge bore an actual, personal bias against the appellant, and 

thus limit our analysis to the issue of apparent bias under R.C.M. 902(a). 
6 

impartial, and if he does take sides, “the members can hardly 

avoid being influenced substantially by his advocacy.” Id. 

(emphasis in original). 

Discussion

 At the direction of the CAAF, we now review Kish I, Kish 

II, and the DuBay record in determining whether the trial judge 

was disqualified based on his conduct at trial and his posttrial comments. 

 We will not re-state here in significant detail the 

Findings of Fact (FoF) from the DuBay hearing, which are 

captured in the Appendix to this opinion and adopted for the 

purposes of this opinion. What is germane to our review and 

analysis of this record can instead be briefly summarized. The 

trial judge, by his own admission, adopted the persona of a 

“hard-charging prosecutor” from the outset of the lecture and 

addressed the Marine law students from the perspective of a 

seasoned trial counsel. An overarching theme of his lecture was 

this: it is very difficult to get convictions in a courtmartial; trial counsel therefore need to be aggressive in 

preparing and presenting their case; they need to overwhelm 

members with a tremendous volume of evidence; and they need to 

pursue convictions with passion and zeal. Additionally, the 

military judge communicated a general impression that he 

believed trial counsel were underperforming, insufficiently 

zealous, or deficient in preparation of their cases. 

With these comments as backdrop, we now review the military 

judge’s conduct in the appellant’s trial. From his initial 

appeal to this court, the appellant has maintained that the 

military judge abandoned his neutral and impartial role during 

the court-martial, principally through his extensive examination 

of AS, the Government’s second witness and the subject of two of 

the four specifications. Trial counsel began his direct 

examination of AS by asking her 110 questions. Those questions 

established both the nature of her social relationship with the 

appellant and the fact that the appellant had provided her with 

alcohol. At that point, the military judge interrupted the 

direct examination and proceeded to ask the next 174 questions. 

Although the military judge briefly turned the examination back 

over to trial counsel, he cut in again on two occasions, and 

ultimately took the direct examination to its close. After the 

military judge concluded his examination, he told trial counsel, 

“Go ahead,” to which the trial counsel responded, “That is all 

the questions I have, sir.” Record at 253. During the direct 
7 

examination of AS, the military judge asked a total of 234 

questions. 

 Moreover, the substance of the judge’s questions was also 

problematic. When he commandeered the direct examination of AS, 

she had just begun to recount an incident in which she, the 

appellant, and another young woman (CB) were all in the 

appellant’s bed at his apartment. It was at this juncture that 

the military judge first interrupted, and he inquired in 

exhaustive and frequently inane detail into an incident of 

uncharged misconduct, in which the appellant engaged in sexual 

intercourse with CB in the presence of AS. 

Both in sheer number and in content, the military judge’s 

questions went beyond what was needed to “clear up 

uncertainties” or “develop the facts further.” See Ramos, 42 

M.J. at 396. Nor was this the type of “limited exchange” 

between military judge and witness that the CAAF found 

acceptable in United States v. Foster, 64 M.J. 331, 337 

(C.A.A.F. 2007). 

 A reasonable person who observed or had knowledge of the 

trial judge’s conduct in Kish I and the comments he made during 

his PME lecture would have a serious question as to the fairness 

and impartiality of the court-martial. Said another way, such a 

person would have viewed the entire Kish trial quite differently 

in light of the military judge’s PME lecture. That observer may 

well have concluded that, by hijacking the direct examination of 

AS, the military judge was telegraphing a message that the trial 

counsel was not aggressive enough and was not overwhelming the 

members with an avalanche of evidence, as he exhorted the Marine 

law students to do. It would thus appear that the military 

judge became a second prosecutor to show trial counsel “how it 

should be done.” 

In elbowing the prosecution aside to conduct his own 

exhaustive direct examination of AS on the minutiae of an 

uncharged sexual act, the military judge fell off the judicial 

tightrope and created an appearance of partiality. See Ramos, 

42 M.J. at 396. 

 

On the unique facts of this case, we find a nexus between 

the military judge’s conduct during the appellant’s trial and 

his later comments detailed in the Appendix. Viewed in tandem, 

these give rise to an appearance of bias in the appellant’s 

case. 
8 

Remedy 

R.C.M. 902(a) does not mandate a particular remedy in 

situations where a military judge should have recused or 

disqualified himself. In Quintanilla, the CAAF adopted the 

three-part Liljeberg test for determining whether a conviction 

should be reversed when a judge erroneously fails to recuse or 

disqualify himself: 

(1) What is the risk of injustice to the parties in 

 the particular case? 

(2) What is the risk that the denial of relief will 

produce injustice in other cases? 

(3) What is the risk of undermining the public's 

confidence in the judicial process? 

Quintanilla, 56 M.J. at 80-81 (citing Liljeberg, 486 U.S. 

at 864). 

First, the risk of injustice to the parties is high. 

Judges are invested with extraordinary discretion on countless 

matters that have significant consequences for the parties in a 

trial. Putting aside for a moment the issue of the direct 

examination of AS, the judge on numerous other occasions 

commented on the evidence, asked questions of other witnesses, 

and ruled upon objections in a manner that may have contributed 

to the findings or the sentence in this case. All those 

decisions, comments, and actions are called into question by the 

appearance of bias. 

Secondly, while denial of relief in this case will not 

itself produce an injustice in other cases, granting relief will 

have the salutary effect of reinforcing the demand for judicial 

impartiality. 

 Thirdly, and most critically, we turn to the question 

of the public’s confidence in our judicial process. 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. We find that the military judge’s conduct 

warrants a remedy to vindicate the public’s confidence in 

the military justice system.
9 

Conclusion 

Accordingly, the findings and sentence are set aside. A 

rehearing is authorized. This action renders moot the 

appellant’s other assignments of error. 

Chief Judge MITCHELL and Judge FISCHER concur. 

For the Court 

 

 

 

R.H. TROIDL 

Clerk of Court 
10 

Appendix to United States v. Kish 

DuBay Hearing: United States v. Kish 

Background 

On 14 March 2013, the Court of Appeals for the Armed Forces 

ordered a hearing pursuant to United States v. DuBay, 37 C.M.R. 

411 (C.M.A. 1967), to make findings of fact and conclusions of 

law related to what, if any, statements the trial judge made on 

or about 21 June 2012, at a Professional Military Education 

(PME) meeting with junior officers regarding the practice of 

military justice. That hearing concluded on 15 July 2013 at 

Marine Corps Base, Quantico. 

Evidence Presented: The presiding DuBay judge heard testimony 

from the five Marine law students5 who attended the PME, from the 

trial judge himself, and from a former Marine judge advocate who 

was assigned to the defense office at the time of the PME. 

Additionally, the DuBay judge admitted the transcript from a 

recusal hearing in United States v. Bremer,6 held one week after 

the PME, at which all five Marine law students also testified. 

Finally, the DuBay judge admitted a redacted version of a 

Preliminary Inquiry Officer (PIO) report ordered by the Chief 

Judge, Department of the Navy (CJDoN) to inquire into the PME 

lecture. That PIO report contained statements from all five 

Marine law students and the trial judge, taken a week after the 

PME lecture. 

Amended Findings: Upon our review of the record of the hearing, 

we approve the DuBay judge’s findings of fact (FoF), with the 

exception of FoF 2, 16, 25, 31-34, and 39, which we find to be 

clearly erroneous (16)7 or irrelevant for the purposes of the 

 

5 The Marine Corps routinely assigns Marine officers who are currently 

attending law school to summer assignments at Marine Corps installations. 

These officers include both Law Education Program officers, who have previous 

experience as commissioned officers, and student program officers, who have 

been commissioned while in law school and for whom these assignments may be 

their first active duty experience. We refer to both groups as “Marine law 

students.” 

6 72 M.J. 624 (N.M.Ct.Crim.App. 2013), remanded to No. 201200472, 2014 CCA 

LEXIS 321, unpublished op. (N.M.Ct.Crim.App. 23 Jan 2014). 

7 To the extent that FoF 16 suggests that LtCol Palmer’s PME comments did not 

address dissatisfaction on the part of Congress and the Commandant of the 

Marine Corps relative to the prosecution of courts-martial, we find this FoF 

clearly erroneous. See FoF 21 and 23 infra. 
11 

inquiry (2, 25, 31-34, 39).8 Additionally, we augment the DuBay

judge’s findings with findings of our own. We do so for the 

sake of general completeness, but also to explore a perceived 

link between the trial judge’s PME lecture and the Heritage 

Brief/Unlawful Command Influence (UCI) motion litigated the 

previous week in the case of United States v. Howell.9 That 

apparent link was highlighted both in a memo from CJDoN and in 

one Marine law student’s statement to the PIO,10 but was not 

addressed by the DuBay judge. For ease of reading, we have 

incorporated the DuBay judge’s findings of fact with our own.11 

We derive our additional findings of fact from the original 

statements submitted by two Marine law students (Appellate 

Exhibit XCVI at 110-13), the statements given to the PIO, the 

testimony at the Bremer recusal hearing, and the testimony at 

the DuBay hearing itself. Moreover, to the extent necessary to 

establish relevant facts, we take judicial notice of the 

timeline established in Howell regarding the Heritage Brief and 

the UCI motion in that case, as it relates to the issue now 

before us. 

Findings of Fact 

1. In June 2012, Lieutenant Colonel [LtCol] Robert Gregory 

Palmer, U.S. Marine Corps, was assigned to the Marine Corps 

Recruit Depot (MCRD), Parris Island, South Carolina, as a 

military judge in the Southern Circuit, Navy-Marine Corps Trial 

Judiciary. At that time, he had been so assigned for 

approximately three years. As the military Judge assigned to 

MCRD, Parris Island, [LtCol] Palmer presided at almost all 

courts-martial held at MCRD, Parris Island, as well as Marine 

Corps Air Station (MCAS), Beaufort, South Carolina. 

The Howell UCI Motion and the Stay 

2. On 11 June 2012, LtCol Palmer, as the trial judge, presided 

over an Article 39(a), UCMJ, session in United States v. Howell. 

At that hearing, the parties litigated a defense motion alleging 

UCI based on the Heritage Brief given by the Commandant of the 

 

8 Additionally, we find FoF 27 to be erroneous in part, but parse that issue 

in FoF 35 below. 

9 United States v. Howell, No. 201200264, 2014 CCA LEXIS 321, unpublished op. 

(N.M.Ct.Crim.App. 22 May 2014). 

10 Appellate Exhibit XCVI at 32. 

11 The DuBay judge’s findings, which have been re-numbered for incorporation, 

are those in italics. 
12 

Marine Corps (CMC) onboard Parris Island on 19 April 2012. In 

support of its motion, the defense counsel provided the trial 

judge with the video and audio recordings of the Parris Island 

brief, and numerous print media articles covering the CMC’s 

tour. After argument on the motion, the trial judge denied the 

defense motion to dismiss, finding that the defense had not met 

its initial burden of showing some evidence of UCI, in that it 

demonstrated no nexus between the CMC’s brief and the case at 

trial. Id. 

3. Following voir dire the next day, the defense renewed its 

objection, noting that the members’ responses had established 

the “missing” nexus. LtCol Palmer again denied the defense 

motion, finding no actual or apparent UCI based on the CMC’s 

Heritage Brief. Id. at *18. 

4. The defense in Howell filed an extraordinary writ with NMCCA 

on 13 June 2012 seeking review of LtCol Palmer’s ruling on the 

UCI motion. On 14 June 2012, this court issued a stay in 

Howell. Id. at *18-19. 

5. Second Lieutenant (2ndLt) AC, a Marine law student assigned 

to the defense section at MCRD Parris Island, observed the 

litigation of the UCI motion in Howell, and assisted in drafting 

the extraordinary writ. AE XCVI at 32, 34. 

The Invitation to Provide PME 

6. On 19 June 2012, [LtCol] Palmer presided at the arraignment 

in United States v. Aboraia. Captain [Capt DC], U.S. Marine 

Corps, a student judge advocate assigned to the defense section, 

attended the arraignment as a spectator. Because of problems 

with the trial counsel’s representation of the United States at 

that session, [Capt DC] approached [LtCol] Palmer soon 

thereafter and asked if he would provide a [PME] session to the 

Marine officer law students (student judge advocates) assigned 

to the MCRD, Parris Island, and MCAS, Beaufort law centers. 

Footnote omitted. 

7. In requesting the training, [Capt DC] asked [LtCol] Palmer 

to “provide training and advice to new judge advocates,” or 

words to that effect. Although [Capt DC]’ s request was spurred 

by his observation of a trial counsel’s problematic presentation 

before [LtCol] Palmer, [Capt DC] did not ask [LtCol] Palmer to 

give the PME to the student judge advocates from the perspective 

of a trial counsel. 

8. [Capt DC]’s request came after witnessing the problematic 

arraignment and [LtCol] Palmer assumed a certain context to 
13 

[Capt DC]’s request. Specifically, [LtCol] Palmer believed [Capt 

DC] requested a PME on how to be a successful trial counsel and 

avoid problems such as those they had both just witnessed. 

[LtCol] Palmer agreed to conduct the training and tasked [Capt 

DC] with assembling the student judge advocates for the PME. 

[LtCol] Palmer believed that [Capt DC] would share the purpose 

and context of the training – as [LtCol] Palmer understood it – 

with the other student judge advocates. 

9. In assembling the group, [Capt DC] told the other student 

judge advocates that [LtCol]Palmer would be giving a PME about 

what to expect as a judge advocate in the Marine Corps. [Capt 

DC] also provided the other student judge advocates a time and 

location for the PME. 

10. It is part of a military judge’s duties to train the 

counsel that appear before that military judge in court. As the 

only military judge in the Southern Circuit assigned to MCRD, 

Parris Island and MCAS, Beaufort, [LtCol] Palmer had provided 

dozens of PME sessions to other counsel during his prior three 

years on station as the military judge. There was no evidence 

presented at the hearing of any issues with the content of any 

PME previously conducted by [LtCol] Palmer. 

The PME Lecture 

11. [LtCol] Palmer provided the PME on 21 June 2012 in the 

courtroom aboard MCAS, Beaufort. Five Marine Corps student 

judge advocates attended: [Capt DC], [Capt NC], [2ndLt AC], 

[2ndLt DL], and [2ndLt AN]. All five individuals were student 

judge advocates on deck at MCRD, Parris Island or MCAS, 

Beauport, and all were assigned to the trial counsel, defense 

counsel, or legal assistance shops in their summer assignment. 

12. The PME lasted from 0800 until 1000. [2ndLt AC] arrived a 

few minutes late and fell asleep for brief periods during the 

PME, but the remaining student judge advocates were present and 

attentive for the entire presentation. 

13. At no time before or during the PME did [LtCol] Palmer 

provide any context to his comments. After the PME, and in the 

course of this matter, [LtCol] Palmer stated he presented the 

PME “from the perspective of what it really takes to be a hardcharging prosecutor” and that during the PME “he used 

exaggerations to present the counsel with the mindset of an 

aggressive trial counsel.” See AE 88, page 4. 

14. [LtCol] Palmer believed that “the context of the course of 

instruction were clear and that these comments would be seen as 
14 

coming from the prospective of a hard-charging trial counsel 

seeking justice.” See AE 88, page 5. [LtCol] Palmer did not 

intend to teach the PME from the perspective of a military judge 

and did not believe that the student judge advocates would view 

his comments as such. 

15. Despite LtCol Palmer’s failure to provide any context for 

his comments, all the law students concur that the PME focused 

largely on the role of a trial counsel, how to be effective as a 

trial counsel, and how to avoid common trial counsel errors and 

deficiencies. AE XCVI at 31, 39, 43, 48-49, 56. 

16. [LtCol] Palmer taught the PME from the well of the 

courtroom and not the bench, while the student judge advocates 

sat a counsel’s tables. He taught with animation, hyperbole, 

and irony, using jokes as well as personal anecdotes in an 

attempt to keep the student judge advocates attentive and 

engaged. 

General Parameters of PME Lecture 

17. [LtCol] Palmer covered numerous topics during the PME, 

including the impending administrative re-organization of Marine 

Corps legal services, as well as the substantive military 

justice topics of charging and speedy trial. He spoke for 

approximately 45 minutes on how to properly complete a charge 

sheet, reviewing the form block-by-block. 

18. He covered in considerable detail how to fill out each 

block, who would typically fill out each block, and the import 

of completing each block (i.e., preferral of charges triggering 

the R.C.M. 707 requirements). As he discussed each block, LtCol 

Palmer mixed in anecdotes and advice from his career, as well as 

common mistakes made. AE XCVI at 48-49, 53. 

19. LtCol Palmer discussed his perception that the quality of 

representation by trial counsel had declined in recent years and 

highlighted areas in which he had seen deficiencies. AE XCVI at 

43, 53. He used his own experiences as trial counsel to 

emphasize how important and difficult the job is and how much 

effort prosecutors need to dedicate. He emphasized that trial 

counsel must overwhelm their opponents with zeal and thorough 

preparation. LtCol Palmer cited examples from recent cases to 

illustrate problems with trial counsel. Id. at 43. He told the 

law students that trial counsel should be fired if they try ten 

cases and get three or four acquittals. Id. at 36, 50. 

20. While discussing the duties of trial counsel, LtCol Palmer 

spoke at some length about “jury” members. He expressed his 
15 

frustration with panel members and spoke of them in a mocking 

manner: he made those remarks while detailing for the law 

students his perception that it is difficult to convince juries 

to convict and that trial counsel need to be prepared to 

overwhelm the members with evidence. 

Specific comments that LtCol Palmer made during the PME. 

21. Although the session was not recorded, and recollections 

among the six officers in the room differ slightly, the evidence 

establishes that LtCol Palmer made the statements contained in 

FoF 24, 27, and 30, and also used approximately the following 

language: Congress is not happy with the way that the Marine 

Corps is handling criminal cases.

22. [LtCol] Palmer made the statement about Congress in the 

context of talking about the reorganization of Marine Corps 

legal services and proposed changes to the Uniform Code of 

Military Justice, including changes to Article 120. 

23. In conjunction with his remarks about Congress and the reorganization of Marine Corps legal services, LtCol Palmer also 

discussed the CMC’s recent initiative on sexual assault and 

CMC’s dissatisfaction with military justice. AE XCVI at 53-54. 

24. During the PME, [LtCol] Palmer made the following 

statements: 

a. You must have a willing suspension of disbelief of the 

victims once the convening authority has decided to 

proceed with the charges. 

b. The defendant is guilty. We wouldn’t be at this stage if 

he wasn’t guilty. 

c. As trial counsel, it is your job to prove the defendant 

is guilty with the fullest veracity. Don’t hold back. 

Once convicted, we need to crush these Marines and get 

them out. 

d. Defendants are scumbags. 

e. If a trial counsel loses a child pornography case, that 

trial counsel will go to hell. 

25. [LtCol] Palmer made each of the [above] statements [. . .]

in the context of the mindset he believes a trial counsel must 

have on every case in order to effectively represent the United 

States. 

26. Most of the Marine law students understood that these 

comments were aimed at them as prospective trial counsel and 

viewed his remarks in that context. AE XCVI at 31, 39, 43, 53, 
16 

56. When LtCol Palmer pointed to the defense table and stated 

that the accused is guilty if he’s sitting there, the Marine law 

students largely understood him to mean that a trial counsel 

must adopt that mindset in order to zealously represent the 

Government. Id. at 39, 55, 110, 112; AE XCVIII at 142-43. 

27. During the PME, [LtCol] Palmer made the following 

statements: 

a. Jury members are stupid, knuckle-dragging morons that 

need to have the drool wiped away from their mouths. I 

don’t hate them, I despise them. 

b. Juries don’t have to follow the law and they know it. 

28. [LtCol] Palmer made the statements in [FoF (30)] in the 

context of how he believes a trial counsel must approach meeting 

their burden of proof to members beyond a reasonable doubt at 

trial. He was attempting to convey that a trial counsel can 

approach the burden of proof too lightly; instead a trial 

counsel must prove even the most basic of facts to the members. 

29. Although some of the law students found LtCol Palmer’s 

comments about jury members offensive or surprising, they 

generally understood him to be making the point that jury 

members are not legal experts or lawyers, do not understand the 

law, and don’t have time in trial to become expert on the law, 

so that a trial counsel must try to convince them to convict 

with an overwhelming volume of evidence. See AE XCVI at 40, 43; 

DuBay Hearing Record at 127-28. 

30. During the PME, [LtCol] Palmer made the following 

statements: 

a. It is extremely difficult to convict a military accused 

under military law. 

b. If you are a trial counsel prosecuting a child 

pornography case and the accused is found not guilty, you 

will go to hell. 

31. [LtCol] Palmer made the statement in [FoF 30] in the 

context of how a trial counsel must approach the responsibility 

of prosecution. 

32. [LtCol] Palmer did not state that a trial counsel needs to 

list any charges on the charge sheet just to get the charges 

before the members, even if the elements of the charges cannot 

be proven, or words to that effect. 
17 

33. During the PME, [LtCol] Palmer told a story about a past 

case in which he acted as trial counsel and the accused received 

a less severe result that that which [LtCol] Palmer had desired. 

[LtCol] Palmer stated words to the effect that “maybe I’ll just 

kill him when he get out [of confinement].” 

34. [LtCol] Palmer offered the student judge advocates numerous 

opportunities to ask questions during the PME. The student 

judge advocates did not ask questions. 

35. [LtCol] Palmer did not discuss cases [or] accused, or 

issues pending before him.12 He did not discuss his judicial 

decision making. He did, however, discuss at least one past 

case in which he had presided as military judge, mostly 

discussing the defense counsel’s admirable trial performance. 

The Aftermath of the PME Lecture 

36. During the PME, [2ndLt AC] was bothered by comments made by 

[LtCol] Palmer. After the PME, [2ndLt AC] returned to the 

defense section where she was assigned and reported her 

recollection of the comments to her supervising defense counsel, 

including (four Marine Corps Captains), (hereinafter referred to 

together as “supervisory defense counsel.)” [2ndLt AC] then 

completed an affidavit memorializing her recollection of the PME 

as she had not taken notes. 

37. In her statement, 2ndLt AC listed those comments that she 

found troubling – basically, those specific statements 

identified in FoF 24, 27, 30, and 33 supra. AE XCVI at 110-11. 

38. Prior to attending the PME, [2ndLt AC] had assisted 

supervisory defense counsel in drafting motions heard by [LtCol] 

Palmer and an extraordinary writ challenging [LtCol] Palmer’s 

ruling in a case. Based on those experiences and other 

observations of [LtCol] Palmer in court, [2ndLt AC] had formed 

the opinion prior to the PME that [LtCol] Palmer, as a military 

judge, was partial to the government. 

39. After speaking with [2ndLt AC], supervisory defense counsel 

contacted the other student judge advocates who attended the PME 

in an attempt to confirm [2ndLt AC’s] account of the PME. 

 

12 We find the lined-out portion of the FoF to be clearly erroneous and 

decline to adopt it. LtCol Palmer discussed Congressional and CMC 

dissatisfaction with the Marine Corps’ prosecution of cases (FoF 21, 23 

supra), which were issues pending before him in Howell at the time of his PME 

lecture: the case was stayed pending this court’s review of his ruling on the 

UCI/Heritage Brief motion. 
18 

40. In response, 2ndLt AN also gave a written statement, but 

the other three declined to do so, in part because of concerns 

that the statement from 2ndLt AC mischaracterized the training. 

DuBay Hearing Record at 71, 103. 

41. LtCol Palmer’s comments during that PME lecture quickly 

became a source of considerable controversy and litigation. As 

a result of the PME, defense counsel filed a Motion to Recuse 

LtCol Palmer in the case of United States v. Bremer. The next 

week, LtCol Palmer presided over a lengthy Article 39(a) session 

in Bremer that explored the content and tone of his PME 

lecture.13 All five Marine law students testified at the Bremer

Article 39(a) session. 

42. The CJDoN, ordered a preliminary inquiry into the PME

pursuant to Judge Advocate General Instruction 5803.1D (1 May 

2012). That inquiry was conducted in the immediate wake of the 

PME lecture and the Bremer recusal hearing. All five Marine law 

students and LtCol Palmer provided statements to the PIO, which 

are included in the DuBay record. 

43. LtCol Palmer left the trial bench in late July 2012. 

Differing Recollections as to Content, Context, and Tone 

44. Trial counsel in Bremer, the PIO, and the DuBay judge all 

treated 2ndLt AC’s recollections skeptically, portrayed her as 

somehow biased against LtCol Palmer by her experience in the 

defense section, and implied or stated that she was tired, 

inattentive, or the only person in the PME lecture who recalled 

certain statements. 

45. The record, however, confirms that 2ndLt AC’s recollection 

as to the content of the statements was largely accurate. From 

her initial statement forward, she alleged that LtCol Palmer 

made approximately eight controversial statements, broken down 

in segments in FoF 21, 24, 27, 30, and 33 supra. Of the eight 

statements that she alleged in her initial affidavit, seven are 

validated by at least one other officer in the room and almost 

all are admitted to by LtCol Palmer. Only one of the eight 

statements that 2ndLt AC alleged in her original statement and 

subsequent statements is not supported by any other officer in 

the room.14 

 

13 See Bremer, 72 M.J. at 628 (finding that the judge erred in not recusing 

himself and remanding for resentencing).

14 See FoF 32 supra. 2ndLt AC alleged that LtCol Palmer stated: “Trial 

counsel needs to list any charges on the charge sheet as long as they have 
19 

46. Rather than biased, 2ndLt AC may simply have been more 

alert to the gravity and possible import of LtCol Palmer’s 

comments because of her familiarity with the UCI motion in 

Howell, litigated the previous week, and the subsequent writ. 

In her statement to the PIO, 2ndLt AC identified the remarks 

made regarding Congress and the CMC (FoF 21, 23) as particularly 

problematic in light of LtCol Palmer’s ruling on the UCI motion. 

AE XCVI at 32. 

47. Although the Marine law students’ testimony and statements 

to the PIO reveal little disagreement about what was actually 

said, the law students differ greatly about the context of his 

comments. 

a. While all five of the student judge advocates thought 

the information presented at the PME was helpful to their 

future practice, [2ndLt AC] and [2ndLt CN] questioned LtCol 

Palmer’s fairness and impartiality after the PME.

b. 2ndLt AC complained immediately with recitation of those 

comments she found offensive. In writing those statements 

down without any frame of reference to LtCol Palmer’s 

lecture topics, 2ndLt AC appears to have lifted several of 

LtCol Palmer’s statements out of context. She consistently 

maintained throughout the investigation and inquiry that 

she doubted his ability to be fair and impartial. AE XCVI 

at 30, 35. 

c. While [2ndLt CN] thought the majority of the PME was 

helpful, he thought that some of [LtCol] Palmer’s comments 

during the PME were troubling. For example, [2ndLt CN] 

took [LtCol] Palmer’s comment that “an accused is guilty or 

he wouldn’t be here” to be [LtCol] Palmer’s personal 

opinion. 

d. 2ndLt DL recalled the same comments that 2ndLt AC 

complained of, but provided more backdrop and context to 

the comments. In context, he was not disturbed by the 

comments, stating “I did not interpret him to be speaking 

about the role of a judge at any time, and I never felt 

that there was any partiality displayed concerning his 

duties as a judge.” AE XCVI at 56. 

 

some evidence to support them, even if some elements cannot be proven in 

order to present the charges to the jury to get a conviction.” The other 

Marine law students recall LtCol Palmer discussing the topic of what to 

charge and supporting evidence, but all deny that he said to charge offenses 

without adequate proof. 
20 

e. Capt DC and Capt NC failed to recall many of the 

controversial comments, and described the training as 

helpful in content and unremarkable in tone. DuBay Hearing 

Record at 99, 102, 124, 128. 

Conclusions of Law 

“An accused has a constitutional right to an impartial 

judge.” United States v. Butcher, 56 M.J. 87, 90 (C.A.A.F. 

2001) (quoting United States v. Wright, 52 M.J. 136, 140 

(C.A.A.F. 1999). 

The Code of Judicial Conduct: The Department of the Navy has 

expressly adopted the American Bar Association Model Code of 

Judicial Conduct to the extent that it does not conflict with 

the statutes, regulations, or the Department’s rules governing 

professional responsibility. JAGINST 5803.1D at 6. 

Two sections of the Canons are of particular relevance to this 

case. Rule 1.2 of the ABA Model Code provides: “A judge shall 

act at all times in a manner that promotes public confidence in 

the . . . impartiality of the judiciary, and shall avoid 

impropriety and the appearance of impropriety.” 

Rule 3.1 provides that “[a] judge may engage in extrajudicial 

activities, except as prohibited by law or this Code. However, 

when engaging in extrajudicial activities, a judge shall not: 

. . . (C) participate in activities that would appear to a 

reasonable person to undermine the judge’s independence,* 

integrity,* or impartiality* . . . .” 

However, the ABA Model Code standards generally are regarded as 

principles to which judges should aspire and are enforced 

primarily through disciplinary action, rather than through 

disqualification. United States v. Quintanilla, 56 M.J. 37, 42-

43 (C.A.A.F. 2001). Actions that violate the Model Code “do not 

necessarily provide a basis either for disqualification of a 

judge or reversal of a judgment unless otherwise required by 

applicable law.” Id. at 43 (citation omitted). 

R.C.M. 902: Instead, we turn to R.C.M. 902, which recognizes 

the constitutional right to an impartial judge and provides two 

bases for disqualification of a military judge. Because R.C.M. 

902 parallels the statute governing disqualification of federal 

civilian judges, 28 U.S.C. § 455, we consider the standards 

developed in the federal civilian courts when addressing 

disqualification issues arising under R.C.M. 902 as well as our 

military justice case law. Id. at 44. 
21 

R.C.M. 902(a) provides for a general rule of disqualification 

for certain appearances of partiality, even though the evidence 

does not establish actual bias. Id. at 45. “The appearance 

standard is designed to enhance public confidence public 

confidence in the integrity of the judicial system.” Id. 

(citing Liljeberg v. Health Services Acquisition Corp., 486 U.S. 

847, 860 (1988). 

In contrast, R.C.M. 902(b) enumerates specific circumstances 

connoting actual bias that require disqualification: those 

circumstances largely center on the military judge’s 

relationship to a party, or extrajudicial involvement, or 

knowledge in a case. 

Therefore, R.C.M. 902 requires consideration of disqualification 

under a two-step process. The first step asks whether 

disqualification is required under any of the specific 

circumstances listed in R.C.M. 902(b). If not, we then ask 

“whether the circumstances nonetheless warrant disqualification 

based upon a reasonable appearance of bias.” Quintanilla, 56 

M.J. at 45. 

For purposes of our inquiry here, we limit ourselves to the 

issue of whether LtCol Palmer demonstrated actual bias in his 

comments during the PME lecture. We leave consideration of the 

equally important question of apparent bias for resolution in 

individual cases.15 

Actual bias: R.C.M. 902(b)(1) provides for disqualification 

“[w]here the military judge has a personal bias or prejudice 

concerning a party . . . .” Several of LtCol Palmer’s 

statements, standing alone, raise the issue of whether he 

harbors a personal bias or prejudice against the accused at any 

court-martial, i.e., referring to accused as “scumbags,” 

speaking of the need to “crush” them, remarking that they are 

guilty if sitting at court-martial, and noting the difficulty of 

securing convictions. (FoF 27b, c, and d.) 

These statements clearly reflect exceptionally poor judgment and 

invite questions regarding judicial temperament and 

professionalism. Nevertheless, considering the context provided 

by the law students in the room, we are convinced that LtCol 

Palmer intended his remarks to convey to the law students the 

perspective that he believed they must have to succeed as trial 

counsel. Said differently, we are convinced that he was voicing 

 

15 In addition to ordering a DuBay hearing in the instant case, the Court of 

Appeals for the Armed Forces remanded eleven cases to this court for further 

consideration after conclusion of our review here. 
22 

not his own biases or prejudices, but instead a mindset that he 

believes a junior counsel must adopt to be a tenacious and 

zealous advocate. We conclude therefore that the evidence does 

not support a determination that LtCol Palmer was actually 

biased against accused servicemembers within the meaning of 

R.C.M. 902(b). As noted above, we leave the issue of apparent 

bias for resolution in individual cases.