U.S. v. Cooper, 51 M.J. 247

First Principles: Constitutional Matters: Due Process

1. due process of law requires that an accused be tried by a judge who has no direct, personal, substantial, pecuniary or other disqualifying interest in the accused’s conviction

Military Justice Personnel: Military Judge: Generally

1. due process of law requires that an accused be tried by a judge who has no direct, personal, substantial, pecuniary or other disqualifying interest in the accused’s conviction

Military Justice Personnel: Military Judge: Conduct/Misconduct

1. military due process requires a military judge who appears impartial throughout the court-martial, but the military judge is expressly permitted to question witnesses if done in a fair and impartial manner; the failure to object to the military judge’s questions strongly suggests that defense did not believe that the questions caused the military judge to lose his impartiality of appearance of impartiality
2. the mere fact that answers to questions posed by the military judge may help or hurt one party does not suggest partiality, especially where the military judge makes clear his neutral purpose in asking the questions and gives unequivocal instructions to the members that they should not view his questions as indicating a pro-prosecution opinion on his part in this case
3. claim that military judge humiliated defense counsel was overstated and judge’s personal expressions of irritation with defense counsel did not divest military judge of appearance of impartiality or support partiality challenge where: (1) defense counsel lodged no objection to military judge’s curative instructions on grounds that such comments evidenced further bias for the government; (2) defense counsel made no motion to disqualify the military judge; (3) the judge’s reprimand was no more than a mild rebuke of defense counsel; and (4) the comments were couched within unequivocal instructions protecting appellant against any impermissible use of his comments
4. military judge’s comments on the poor quality of defense videotape evidence, viewed in context, reflected a frustration with the form of the evidence, not party presenting it, and military judge directly helped the defense present its evidence in a more understandable fashion
5. the burden is upon an accused to object to evidentiary comments which might possibly be perceived as unfair, and absent objection the comments will be reviewed under the plain error doctrine to determine whether the comments clearly or obviously raise a reasonable doubt concerning the judge’s impartiality