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Military will look into whether judge’s comments tainted trials

WASHINGTON — A former Marine Corps judge who allegedly called those accused of sexual assault “scumbags” who deserve to be “crushed” is at the center of a widening inquiry into the impartiality of his court-martial rulings.

Convictions or sentences in at least 10 trials face challenge because of the incendiary comments attributed to Marine Lt. Col. Robert G. Palmer. As lawmakers urge more aggressive actions against military sexual assault, military officials are convening an unusual hearing to discover what Palmer said and whether it tainted military justice.

What happens next matters to men such as Richard T. Pearce, a former chief warrant officer based at one time in Beaufort, S.C. Pearce, like other convicted Marines now challenging Palmer’s actions, says the judge’s alleged statements revealed a prejudice against defendants.

The impending hearing will uncover more details, but at least one case has already been turned upside down. On Thursday, citing questions about Palmer’s impartiality, the U.S. Navy-Marine Corps Court of Criminal Appeals ordered a new sentence for a former lance corporal, Ian C. Bremer, who was convicted last year at Parris Island, S.C., on drug charges.

“On this extraordinary record, the military judge’s comments cannot be deemed harmless,” the appeals court wrote. “His actions undermine public confidence in the military justice system.”

Palmer, an Iraq War veteran who has been praised by some of his fellow officers, is now stationed at the Marine Corps Recruit Depot at Parris Island, though he’s no longer serving as a judge. He declined to comment Friday, citing the ongoing nature of the cases in question.

More broadly, the Palmer cases illustrate the complications that can ensue when top military and political leaders try to stiffen an organization’s resolve. Sometimes, judges and attorneys warn, a rallying cry can go too far.

“You wonder whether the judge’s alleged comments are indicative of the broader impact of the internal and external pressures to convict and punish accused military members at all costs,” defense attorney Richard Stevens said Friday.

At the very least, the legal conflict underscores how words may be intended one way but interpreted in another. Palmer, for instance, was quoted by a junior Marine Corps officer as urging dogged prosecution of child pornography defendants; the impact, though, was ambiguous.

“If … he gets off because of your incompetence, you will go to hell,” Palmer said, according to the junior officer, who added that “I think he was trying to be humorous with this comment because he chuckled when he said it.”

The junior officer is not identified in court records.

The U.S. Court of Appeals for the Armed Forces has ordered a fact-finding hearing before June 23 at the Marine Corps base in Quantico, Va. Though it could be applied in other cases eventually as well, the hearing was ordered for an appeal by former Marine Staff Sgt. Dustin D. Kish. Kish was a recruiter in upstate New York in 2009, originally charged with having a relationship with a prospective female recruit. Palmer was the court-martial judge.

Kish initially challenged Palmer’s actions during the court-martial. The Navy-Marine Corps Court of Criminal Appeals rejected his claims last year, declaring that “we find no evidence from which a reasonable person would doubt the court-martial’s legality, fairness or impartiality.”

Kish followed up with allegations that Palmer’s statements during a June 2012 legal training session showed bias. These will be the focus of the upcoming post-trial fact-finding hearing, which military law experts call unusual for its attention to a military judge’s actions.

On June 21, 2012, Palmer was delivering a professional military education talk to five junior Marine Corps officers. Two officers subsequently filed statements about what he said.

“He encouraged the junior officers to aggressively charge and prosecute cases, stating that Congress and the commandant of the Marine Corps wanted more convictions, and opined that trial counsel should assume the defendant is guilty,” the Navy-Marine Corps Court of Criminal Appeals summed up in a decision last November.

The Navy and Marine Corps appellate court, though, until now has generally declined to second-guess Palmer’s decision-making. For instance, the appellate court last November upheld the conviction of Pearce, the former chief warrant officer accused of fraternization and other charges, in a court-martial overseen by Palmer.

“We do not countenance the comments made by the military judge, however, we are convinced that (Pearce’s) court-martial was a fair and impartial proceeding,” the appellate court said.

The same court took a different tack Thursday in ordering a new sentence for Bremer, the former lance corporal and weapons specialist who judges say was diagnosed with post-traumatic stress disorder. The Bremer case differs from the others, in part because the June 2012 trial involved Palmer’s aggressive attempt to defend his judicial reputation once questions arose about his statements.

Palmer’s actions, the appellate court concluded Thursday, “would lead a reasonable person to question whether he lost his fairness and impartiality and became primarily focused on protecting himself.”

The fact-finding hearing in the Kish case is supposed to be finished by late June, after which appellate judges will decide the next step for Kish and, in time, the other convicted Marines who want another chance.

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