U.S. v. Green, 64 M.J. 289

Military Justice Personnel: Military Judge: General Powers

1. in a bench trial, a military judge is not precluded from setting forth his reasons for the sentence imposed
2. a military judge may not interject his or her personal beliefs into the sentencing process

Trial Stages: Sentence and Punishment: Evidence

1. an accused has a broad right during allocution to bring aspects of his or her personal life for consideration in extenuation or mitigation; an accused, for example, may attempt in sentencing to demonstrate repentance and readiness for rehabilitation
2. an accused may attempt during sentencing to convince the military judge that that his or her religious practices and beliefs demonstrate repentance and readiness for rehabilitation; when the accused does so, the military judge may properly take into account the credibility and context of the accused’s statement; the military judge must ensure that the evidence is considered for the appropriate purpose, and that the military judge does not interject his or her personal religious beliefs into the sentencing process

Trial Stages: Sentence and Punishment: Lawfulness of Sentence

1. a military judge may not interject his or her personal beliefs into the sentencing process

Trial Stages: Appeals: Harmless / Prejudicial Error

1. even if the military judge erred in making incidental religious references during his statement on the reasons for his sentence, any error was harmless, where the military judge’s sentencing remarks primarily discussed appropriate sentencing considerations, where in context and in the absence of defense objection, his remarks reflected a judge attempting to address the accused’s sentencing case and did not reflect an effort to interject religion as either a sentencing factor or a matter of bias, and where the sentence did not reflect prejudicial consideration of extraneous factors

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. if a military judge erroneously permits consideration of inadmissible evidence during sentencing, an appellate court tests the error for prejudice
2. if a military judge comments on the sentence, his remarks may be reviewed on appeal to determine whether he relied on inadmissible matter in determining the sentence
3. an appellate court reviews a military judge’s consideration of sentencing factors under an abuse of discretion standard
4. a claim of judicial bias in sentencing is evaluated by an appellate court by considering, in view of the sentencing proceeding as a whole, whether a reasonable person would doubt the court-martial’s legality, fairness, and impartiality