(concurring):
My purpose in expressing what follows is to make my views in this area clear. I am able to join the majority in concluding as a matter of law that the military judge abandoned his impartiality. He displayed proclivity toward discovery of minute details of incidents of uncharged conduct more akin to the interest of an investigator concerned with apprehension and prosecution than dedication to the imposition of sentence with dispassion.
Of all decisions a judge must make, those which concern sentencing a convicted accused are most agonizing. In order to perform this obligation, a judge has broad discretion to collect information relevant to an enlightened determination. In the instant case the judge’s exhibited bent for bizzare, irrelevant, and extraneous details sufficiently serves to persuade me that his discretion was abused.
In order to reach this conclusion, I believe it germane to assign a number of legal principles to proper legal grooves.
In the case at bar the accused entered guilty pleas and there were no court members. The Government urges that it can be assumed that the judge has culled the impermissible information from that properly usable, and, hence, there is no error, citing the case United States v Montgomery, 20 USCMA 35, 42 CMR 227 (1970). Obviously a strong presumption exists that a judge experienced in the law will disregard improper evidence or argument, but the genesis of the presumption is assumed impartiality. Upon a finding of prejudice on the part of a judge the presumption vanishes. The chance that the abandonment of impartiality permeates personal judgment is so great that it would be grossly unreasonable to presume such a mental attitude can be disregarded at the moment of sentence.
The accused herein could have been sentenced to dishonorable discharge, confinement at hard labor for seven years, total forfeitures, and reduction to pay grade E-l. The accused was sentenced to a bad-conduct discharge, confinement at hard labor for twenty months, total forfeitures, and reduction to pay grade E-l. The accused does not contend that the sentence is legally inappropriate. Furthermore, there is no claim of want of jurisdiction.
I deem it proper to hold that even though there is no finding that the sentence is inappropriate or erroneous, in order to comport with fundamental fairness, the accused must be granted a rehearing on the sentence. A sentence by a partial judge is so grievous to a fair and well ordered system of justice that it should be made clear that upon a finding of partiality by sufficient evidence, a rehearing on sentence will be ordered. Respect for and confidence in the system of military justice can only be maintained by the avoidance of partiality or the appearance of partiality of a military judge. As I view it, such a situation is a classic example of gross ill that must be cured by an extremely firm curative effort directed against it.