2021 (October Term)
United States v. Rudometkin, 82 M.J. 396 (RCM 902(a) requires a military judge to disqualify himself or herself in any proceeding in which that military judge’s impartiality might reasonably be questioned).
(three factors are considered to determine if a remedy is warranted for a judge’s failure to recuse himself: (1) the risk of injustice to the parties in the case; (2) the risk that the denial of relief will produce injustice in other cases; and (3) the risk of undermining the public’s confidence in the judicial process).
(in this case that involved an accused who was convicted of rape, aggravated sexual assault, assault consummated by a battery, and adultery, assuming that the military judge should have disqualified himself due to his own inappropriate relationship with another servicemember’s wife, the reviewing judge did not abuse his discretion in denying the accused’s motion for a mistrial where the reviewing judge considered the general similarity of the accused’s misconduct and that of the military judge, emphasized that the military judge was not aware that he was suspected of adultery until after the trial and first post-trial session in which the accused’s sentence was reduced, determined that the administrative investigation into the military judge’s conduct made it very unlikely that injustices would occur in other cases, and concluded that a reasonable member of the public, knowing all the facts and circumstances, to include not only the suspicious personal relationship between the military judge and the other servicemember’s wife, but the sentence, sentence reduction, and crux of the case involving rape and violence against women, would not lose confidence in the justice system).
2020 (October Term)
United States v. Uribe, 80 M.J. 442 (the validity of the military justice system and the integrity of the court-martial process depend on the impartiality of military judges in fact and in appearance; therefore, actual bias is not required; an appearance of bias is sufficient to disqualify a military judge).
(in the military context, the appearance of bias principle is derived from RCM 902(a); this rule provides that a military judge shall disqualify himself or herself in any proceeding in which that military judge’s impartiality might reasonably be questioned; the test for identifying an appearance of bias is whether a reasonable person knowing all the circumstances would conclude that the military judge’s impartiality might reasonably be questioned; this is an objective standard; recusal based on an appearance of bias is intended to promote public confidence in the integrity of the judicial process; but this appearance standard does not require judges to live in an environment sealed off from the outside world; indeed, personal relationships between members of the judiciary and participants in the court-martial process do not necessarily require disqualification; however, the existence of a social relationship creates special concerns which a professional relationship does not).
(military judges should be especially circumspect in deciding whether to disqualify themselves in deciding a joint recusal motion).
(the proper focus of an inquiry into the appearance of bias between a military judge and a party is whether the relationship between the judge and party raises special concerns, whether the relationship was so close or unusual as to be problematic, and/or whether the association exceeds what might reasonably be expected in light of the normal associational activities of an ordinary military judge).
(in this case, the military judge failed to recognize that his friendship with the trial counsel raised special concerns where he had formed a close personal bond that transcended the routine personal and professional relationships commonly found between a military judge and a party who appears before that military judge; as a result, based not only on the frequency of their contact but also on the nature of the relationship, the judge abused his discretion when he denied a joint recusal motion from both trial and defense counsel; simply stated, granting this motion was necessary in order to maintain public confidence in the integrity and fairness of the military justice system because the judge’s impartiality in this case could reasonably be questioned).
(when a military judge abuses his discretion in denying a recusal motion, an appellate court examines whether, under Liljeberg [486 US 847 (1988)], reversal is warranted; because not every judicial disqualification requires reversal, the Liljeberg standard determines whether a military judge’s conduct warrants that remedy to vindicate public confidence in the military justice system; the first Liljeberg standard examines if there is any specific injustice that the appellant personally suffered; the second factor examines whether granting relief would encourage a judge or litigant to more carefully examine possible grounds for disqualification and to promptly disclose them when discovered; and the third factor uses an objective standard by determining whether the circumstances of a case will risk undermining the public’s confidence in the military justice system; although similar to the standard applied in the initial RCM 902(a) analysis, the third factor differs from the initial RCM 902(a) inquiry because it is not limited to facts relevant to recusal, but rather reviews the entire proceedings, to include any post-trial proceeding, the convening authority action, the action of the CCA, or other facts relevant to the Liljeberg test).
(in this case, reversal is not required under the three Liljeberg factors where (1) for the first factor, appellant failed to identify any specific injustice he suffered at the hands of the military judge, (2) for the second factor, appellant did not pursue or present any argument on this point in his briefs, and (3) upon examination of the entire proceedings, the third factor favors affirming the court-martial findings and sentence where (a) the judge acquitted appellant of one offense, (b) there was compelling evidence of appellant’s guilt on the other offense, (c) the CCA found no merit in appellant’s other challenges to the court-martial proceedings and determined that the sentence was legally correct and appropriate, and (d) a decision to affirm the findings and sentence under these circumstances would not upset public confidence in the judicial process).
2013 (September Term)
United States v. Leahr, 73 M.J. 364 (during a trial on the merits, a military judge’s comments thanking a witness for his efforts to protect the alleged victim and asking defense counsel before findings whether a witness would be subject to recall as a sentencing witness did not present deep-seated favoritism or antagonism so as to deny appellant a fair trial; however, military judges should be careful not to make such comments).
2012 (September Term)
Hasan v. Gross, 71 M.J. 416 (in the military context, the appearance of bias principle with respect to the recusal of a military judge is derived from RCM 902(a): “A military judge shall disqualify himself . . . in any proceeding in which that military judge’s impartiality might reasonably be questioned.”; the standard for identifying the appearance of bias is objective: any conduct that would lead a reasonable man knowing all the circumstances to the conclusion that the judge’s impartiality might reasonably be questioned).
(as in the civilian context, recusal of a military judge based on the appearance of bias is intended to promote public confidence in the integrity of the judicial process; what matters is not the reality of bias or prejudice but its appearance; in the military justice system, where charges are necessarily brought by the commander against subordinates and where, pursuant to Article 25, UCMJ, the convening authority is responsible for selecting the members, military judges serve as the independent check on the integrity of the court-martial process; the validity of this system depends on the impartiality of military judges in fact and in appearance).
(in this case, the removal of the military judge based on the appearance of bias was appropriate where the military judge had appellant, a practicing Muslim, removed from the courtroom because of his beard, where the military judge issued appellant six contempt citations for failing to shave, where the military judge ordered appellant’s forcible shaving in the absence of any command action to do the same and in the absence of sufficient evidence to demonstrate that appellant’s beard materially interfered with the proceedings, where the military judge impliedly accused appellant of soiling the floor of the deliberation room latrine and banned appellant from using that latrine again, and where the military judge and his family were present on base on the day of the shooting incident at issue in the court-martial; all of these circumstances could lead an objective observer to conclude that the military judge was not impartial towards appellant; in fact, it could reasonably appear to an objective observer that the military judge had allowed the proceedings to become a duel of wills between himself and appellant rather than an adjudication of the serious offenses with which appellant was charged; based on a combination of the aforementioned factors, a reasonable person, knowing all the relevant facts, would harbor doubts about the military judge’s impartiality).
United States v. Martinez, 70 M.J. 154 (when 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; the appearance of impartiality is reviewed on appeal objectively and is tested under the following standard: 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; because not every judicial disqualification requires reversal, the standards announced by the Supreme Court in Liljeberg [486 US 847 (1988)] are used to determine whether a military judge’s conduct warrants that remedy to vindicate public confidence in the military justice system).
(Rule 1.2 of the ABA Model Code of Judicial Conduct, mirrored by the Code of Judicial Conduct for Army Trial and Appellate Judges, provides that a judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety or the appearance of impropriety; paramount among a military judge’s continuing ethical responsibilities, consistent with the Model Code and pursuant to the Army Code, is to ensure against improper ex parte communications and the appearance of partiality; specifically, Rule 2.9 provides a general prohibition against initiating, permitting, or considering ex parte communications involving substantive matters, except in very limited circumstances; in this case, the supervisory military judge’s communications with the trial counsel during the trial concerning the legal sufficiency of the providence inquiry and/or the legal sufficiency of the inquiry into the pretrial agreement involved substantive matters, and it was plain and obvious error for her to initiate those ex parte communications with trial counsel; compounding this error, the supervisory judge entered the presiding trial judge’s chambers during a recess she initiated as well as during the deliberations, and failed to inform the trial judge that she had been communicating ex parte with the prosecution; a reasonable person knowing all these circumstances would have observed the supervisory judge privately conferring with the trial counsel and then accompanying the presiding judge into his chambers during recess and deliberations; this course of conduct under the circumstances created an appearance that neither the supervisory judge nor the trial judge was impartial).
2009 (September Term)
United
States v. Roach, 69 M.J. 17 (a recusal of a
judge means the judge may not
preside over any subsequent proceedings in the case or perform any
other
judicial actions with respect to it; once recused, a military judge should not play any procedural or
substantive role with regard to the matter about which he is recused;
when a
judge is recused, the judge should not take action to influence the
appointment
of his or her replacement).
(the chief judge of a court of
criminal appeals
may not recommend to the JAG an acting chief judge for a case in which
the
chief judge is recused; by taking a procedural step after his recusal,
at a
minimum, the chief judge’s actions create the appearance of directly
impacting
a case from which he was recused).
(in this case, although the
error by the chief
judge in recommending to the JAG an acting chief judge for a case in
which the
chief judge was recused was a nonstructural error, it nonetheless was
not
harmless where public confidence in the military judicial process was
surely
undermined when judge who was recommended by the recused judge
subsequently presided
over the case, reviewed the recused judge’s prior conduct, and wrote
the
opinion upholding the recused’s judge’s conduct).
United
States v. Greatting, 66 M.J. 226 (presiding over
companion cases
does not alone constitute grounds for recusal; however, when an ex
parte
discussion about those cases takes place between the military judge and
the SJA
prior to appellant’s court-martial and while clemency matters and
appeals in
the companion cases were pending, that would lead a reasonable person
to
question the military judge’s impartiality).
(when assigned
to the judiciary, the military judge frequently will find
himself or herself in close and continuing contact with judge advocates
outside
the courtroom; in light of these and other circumstances, members of
the
military judiciary must be particularly sensitive to applicable
standards of
judicial conduct).
(ex parte contact with counsel
does not necessitate recusal under RCM 902(a),
particularly if the record shows that the communication did not involve
substantive issues or evidence favoritism for one side; however, an ex
parte
communication which might have the effect or give the appearance of
granting
undue advantage to one party cannot be condoned; the same holds true
when
considering the propriety of ex parte contact between a military judge
and an
SJA).
(military judge who presided over
four companion cases abused his discretion by not recusing himself
after having
an ex parte discussion with the convening authority’s SJA and probably
his
deputy in which he provided case-specific criticism about the companion
cases
before clemency matters had been resolved in any of those cases and
possibly
before the pretrial agreement in appellant’s case had been finalized
and in
which he commented on the potential culpability of appellant; the
military
judge’s ex parte discussion with the SJA would lead a reasonable
person,
knowing all the circumstances, to the conclusion that the military
judge’s
impartiality might reasonably be questioned and he was obliged to
recuse
himself for implied bias under RCM 902(a)).
2007
United States v. Foster, 64 M.J. 331 (a military
judge’s impartiality is crucial to the conduct of a legal and fair
court-martial; the military judge may participate actively in
proceedings to assure that court-martial members receive the
information that they need to determine whether the accused is proven
guilty; however, the military judge must take care not to become an
advocate for either party).
(there is a strong
presumption that a military judge is impartial in the conduct of
judicial proceedings).
(the accused did not
establish that the military judge was impartial based on an allegation
that he improperly limited the testimony of the defense expert when he
ruled that she could not reveal her personal assessment of a child
victim’s credibility, where such limitation on the testimony of the
expert was appropriate; testimony about a victim’s credibility or its
functional equivalent is not admissible).
(a military judge can and
sometimes must ask questions in order to clear up uncertainties in the
evidence or to develop the facts further; because jurors are ever
watchful of the words that fall from him, however, a military judge
must be circumspect in what he says to the parties and in how he
examines witnesses).
(military judges should take
care to elicit information in a neutral manner and to avoid the kind of
approach that closely resembles the tenor of cross-examination).
(the accused did not
establish that the military judge was impartial based on an allegation
that he conducted a hostile examination of the defense expert in front
of the members; although the tenor used by the military judge in
questioning the defense expert closely resembled cross-examination,
nevertheless, judging from the standpoint of a reasonable observer,
taken as a whole in the context of this trial, the limited exchange
between the military judge and the defense expert cast no doubt upon
the court-martial’s legality, fairness, and impartiality).
(expert testimony is
appropriate where scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or to
determine a fact in issue; when an individual testifies as an expert
under MRE 702, it is precisely because the military judge has found
that individual to hold the requisite qualifications of an expert; the
members are entitled to be informed of that designation and a military
judge must not impose his or her own views to either diminish or
enhance that important role).
(the accused did not
establish that the military judge was impartial based on an allegation
that the military judge’s expert witness instruction essentially told
the members that the defense expert’s testimony was worthless because
it (1) failed to identify the defense expert as an expert, (2)
inaccurately summarized her testimony, and (3) characterized her
testimony as educational and that of the government’s expert as
specialized; although the military judge erred in failing to use the
term expert and by substituting that term with the terms specialized
and educational, the instruction did not raise any reasonable doubt
about the military judge’s impartiality, where the judge’s refusal to
use the term expert applied equally to both parties’ witnesses and the
term educational testimony was not critical of the defense expert or
prejudicial to the accused’s defense).
(the accused did not
establish that the military judge was biased against the defense expert
based on comments made by the judge about that expert outside the
presence of the members; although the military judge made several
intemperate and inappropriate statements concerning the defense
expert’s experience, ego, and the need to control her testimony, this
personal expression of irritation did not impact the accused’s right to
a fair trial in light of the fact that the comments were not heard by
the court-martial members).
2002
United
States v. Butcher, 56 MJ 87 (an accused has a
constitutional right to an impartial judge).
(RCM 902(a), governing disqualification of military judges for
appearance of
bias, maintains public confidence in the judicial system by avoiding
even the
appearance of partiality and enhances confidence in the fairness of the
proceedings because in matters concerning bias, the line between
appearance and
reality is often barely discernable).
(in the course of reviewing the military judge’s ruling under RCM
902(a) for
abuse of discretion, the facts and circumstances are considered under
an
objective standard: 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).
(although the appearance of bias standard does not require judges to
live in
an environment sealed off from the outside world, the interplay of
social and
professional relationships in the armed forces poses particular
challenges for
the military judiciary, and military judges must be particularly
sensitive to
applicable standards of judicial conduct).
(activity inconsistent with standards of judicial conduct does not
mandate
recusal unless it rises to the level of a violation of applicable
disqualification
standards).
(there is no mandated particular remedy for situations in which an
appellate
court determines that the military judge should have removed himself or
herself
from a case).
(there is a three-part test for determining whether reversal of a
conviction
or decision is warranted as a remedy when a judge has erred in failing
to
recognize that disqualification was required because the judge’s
impartiality
might be questioned: the reviewing court will consider (1) the
risk of
injustice to the parties in the particular case, (2) the risk that
denial of
relief will produce injustice in other cases, and (3) the risk of
undermining
the public’s confidence in the judicial process).
(although court assumes that military judge should have recused
himself,
reversal was not warranted where: (1) events giving rise to
disqualification occurred near end of trial; (2) the military judge was
not
called upon to exercise discretion on any matter of significance
concerning
findings after that point; (3) appellant was sentenced by members; (4)
appellant received one of the sentence alternatives requested by
defense
counsel; (5) it was not necessary to reverse this case to ensure that
military
judges exercise the appropriate degree of discretion in the future; and
(6),
under the circumstances, reversal is not required to avoid undermining
the
public’s confidence in the judicial process).
United
States v. Quintanilla, 56 MJ 37 (the ABA
Model
Code of Judicial Conduct and the ABA Standards for Criminal Justice
provide
guidance on the proper conduct of criminal trials and are the standards
to
which judges should aspire).
(the
standards
applicable
to military judges are enforced primarily through disciplinary action
and advisory
opinions; actions that violate codes of conduct do not necessarily
provide a
basis either for disqualification of a judge or reversal of a judgment
unless
otherwise required by applicable law).
(a military judge shall perform the duties of judicial office
impartially
and diligently, including requirements that the judge "be patient,
dignified and courteous to litigants, jurors, witnesses, lawyers, and
others" and that the "judge shall not . . . by words or conduct
manifest bias or prejudice."
(an accused has a constitutional right to an impartial judge).
(in carrying out his or her duties: a military judge must avoid
undue
interference with the parties’ presentations or the appearance of
partiality;
the military judge must exert his or her authority with care, so as not
to give
even the appearance of bias for or against either party; the military
judge is
charged with ensuring the dignity and decorum of the proceedings and
conducting
trials in an atmosphere which is conducive to calm and detached
deliberation
and determination of the issues presented).
(impartiality does not mean that the military judge should act
simply as an
umpire in a contest between the Government and the accused; the judge
fulfills
a complex role, exercising evenhanded control over the proceedings
without
veering, or appearing to veer, to far to one side of the other).
(actions taken in the course of a trial may warrant disqualification
of the
military judge where it can be shown that such bias was either directed
against
a party or its counsel, or in favor of the adverse party or counsel, or
that
the challenged judge, in order to compensate for the appearance of such
a bias,
has bent over backwards to make it seem as though he has not acted as a
result
of such bias).
(there is a strong presumption that a judge is impartial, and a
party
seeking to demonstrate bias must overcome a high hurdle; remarks,
comments, or
rulings of a judge do not constitute bias or partiality unless they
display a
deep-seated favoritism or antagonism that would make fair judgment
impossible).
(military judge should steer clear of circumstances that would
demonstrate
bias or the appearance of bias including ex parte
communications on the
merits, or procedures affecting the merits, or a pending or impending
proceeding).
(the fact of an ex parte communication alone does not
mandate
disqualification, particularly if the record shows that that
conversation did
not involve substantive issues or evidence favoritism to one side – a
decision
on disqualification will depend upon: (1) the nature of the
communication; (2)
the circumstances under which it was made; (3) what the judge did as a
result
of the ex parte communication; (4) whether it adversely
affected a party
who has standing to complain; (5) whether the complaining party may
have
consented to the communication being made ex parte and, if so,
whether
the judge solicited such consent; (6) whether the party who claims to
have been
adversely affected by the ex parte communication objected in a
timely
manner; and (7) whether the party seeking disqualification properly
preserved
its objection).
(the disqualification standards of RCM 902 parallel the statute
governing
disqualification of federal civilian judges, 28 USC § 455; the
standards
developed in federal civilian courts, as well as military case law, are
considered when addressing disqualification issues arising under RCM
902).
(RCM 902 divides the grounds for disqualification into two
categories: (1)
RCM 902(b) lists five specific circumstances connoting actual bias; and
(2) RCM
902(a) addresses the appearance of bias requiring disqualification of a
military judge when that military judge’s impartiality might reasonably
be questioned).
(the appearance of bias requiring disqualification of a military
judge when
that military judge’s impartiality might reasonably be questioned is
designed
to enhance public confidence in the integrity of the judicial system
and to
reassure the parties as to the fairness of the proceedings).
(counsel may move for the disqualification of a military judge, but
military
judges also have a continuing duty to recuse themselves if any of the
bases of
disqualification under RCM 902 develop).
(of all the grounds for disqualification in RCM 902, only the
appearance of
bias may be waived, RCM 902(a), after full disclosure of the basis on
the
record. RCM 902(e)).
(a judge’s decision on the issue of disqualification is reviewed for
abuse
of discretion).
(because the military judge did not ensure that the record reflected
a full
disclosure as required by RCM 902(e), court found it inappropriate to
conclude
on the present state of the record that the defense counsel waived the
appearance of bias disqualification in this case – specifically, the
record was
deficient in the following respects: (1) the military judge never
disclosed an ex
parte conversation with trial counsel about the timing of a
witness’s
testimony; (2) the military judge failed to provide a complete
description of
his out-of-court confrontations with a witness; (3) what description
there is
was not coherent and made it difficult to determine precisely what
happened
during the confrontations; and (4) the judge put the witness on the
stand and questioned
him in a manner that minimized the disclosure of information about the
events).
(when a military judge’s impartiality [appearance of bias] 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; this test is objective, judged from the
standpoint of
a reasonable person observing the proceedings).
(the military judge erred in interjecting himself into a problem of
witness
production by leaving the bench during trial and engaging in
out-of-court,
off-the-record actions without first ascertaining the facts; the matter
of
witness production was a responsibility of the trial counsel).
(the fact that the military judge failed to perform his duty to
fully
disclose on the record the events of his out-of-court confrontation
with a
witness after the events became an issue could cause a reasonable
person to
question the judge’s impartiality in the proceedings).
(ambiguity in the record concerning the military judge’s
confrontation with
a witness could cause a reasonable person to question the judge’s
impartiality
in the proceedings and flows from the following: (1) numerous
discussions
between the military judge and spectators contain cryptic and
incomplete
references to persons and events; (2) the military judge’s interaction
with
witnesses and counsel was marked by numerous interruptions, incomplete
sentences, and references to persons and events whose significance was
not
explained; (3) at least one off-the-record RCM 802 session was not
adequately
summarized on the record; (4) references to out-of-court developments
were
vague and incomplete, with little to identify the source of information
and
whether the information was shared with counsel; (5) the record
regarding trial
counsel’s motion to recuse the military judge and related intent to
submit an
interlocutory appeal on that issue is unclear; and (6) the military
judge
failed to disclose an ex parte conversation with trial counsel
about the
timing of a witness’s testimony).
(the military judge’s continued participation in the case, after the
development of a stipulation that relied extensively on the judge’s
personal
knowledge of out-of-court events and that placed the judge’s stature
and
credibility in contest with the credibility of a witness, and adversely
reflected on the military judge’s own professional conduct, clearly
raised
questions about his impartiality under RCM 902(a)).
(there is a three-part test for determining whether reversal of a
conviction
or decision should be granted as a remedy when a judge has failed to
recognize
that his or her disqualification was required because the judge’s
impartiality
might reasonably be questioned: the reviewing court will consider (1)
the risk
of injustice to the parties in the particular case, (2) the risk that
denial of
relief will produce injustice in other cases, and (3) the risk of
undermining
the public’s confidence in the judicial process).
2000
United
States v. Thompson, 54 MJ 26 (critical,
disapproving, or
even hostile judicial remarks concerning defense counsel do not require
a judge
to recuse himself in the ordinary case).
(even though nerves may have become frayed during a give and take
between
the military judge and defense counsel, the military judge was not
obligated to
recuse himself where: the record reflects efforts by the military
judge
to clarify and remedy previously asserted defense concerns where
1999
(military judge abandoned his impartial role and assisted in the
conviction
of the accused when he prohibited the accused from testifying about the
victim’s sexual reputation, posed questions to the accused which
required the
accused to say that he could not answer because of the judge’s ruling,
permitted trial counsel to invoke the same response from the accused,
and gave
limiting instructions which created doubt about the accused’s
credibility).
United
States v. Cooper, 51 MJ 247 (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).
(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).
(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).
(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).
(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).