(dissenting):
I dissent. In my opinion, under the circumstances of this case, in light of the trial judge’s admitted pro-Government bias, there is a substantial doubt as to the fairness of the proceedings.
Denying the defense challenge for cause of a court member who was a squadron legal officer, had worked closely with the trial counsel in preparing other cases for prosecution, and stated she thought she would be impartial although she was oriented towards the Government, the judge stated, “It [the member’s pro-Government orientation] doesn’t make any difference. Trial counsel is oriented toward the Government. Are you going to have him step out of here? I’m oriented toward the Government. It’s her job and because of her job doesn’t make her impartial — I mean incapable of sitting as a fair and impartial member . . . Earlier during defense counsel’s voir dire examination of another member who was the director of security or base chief of police and responsible for investigation of serious crimes, including drug offenses, when the member admitted that his primary job was to perfect cases for prosecution, the judge had interrupted the defense counsel, assumed the role of trial counsel, coached the member and attempted to rehabilitate him. The judge denied the defense challenge for cause of this member. Compare United States v. Glaze, 3 U.S.C.M.A. 168, 11 C.M.R. 168 (1953) (There is nothing inherently unfair in permitting a lawyer to participate as a member of a court-martial) and United States v. Stewart, 2 U.S.C.M.A. 78, 6 C.M.R. 78 (1952) (The accused was not prejudiced by permitting an officer assigned to military police headquarters to sit as a member when he had formed no opinion as to guilt) with United States v. Hedges, 11 U.S.C.M.A. 642, 29 C.M.R. 458 (1960) (Reversal was required where voir dire of members, the majority of whom had law enforcement or similar duties, revealed the appearance of a court handpicked to favor the prosecution).
The trial judge should conduct himself at all times in a manner which promotes public confidence in the impartiality of the judiciary and recuse himself whenever he believes his impartiality can reasonably be questioned. ABA STANDARDS, THE FUNCTION OF THE TRIAL JUDGE, §§ 1.5, 1.7. The military judge is required to avoid the appearance, as well as the existence of evil in his court and establish the confidence of the general public in the fairness of the court-martial proceedings. United States v. Rosser, 6 M.J. 267 (C.M.A.1979); United States v. Conley, 4 M.J. 327, 329 (C.M.A.1978). See generally Higley, Justice and the Judiciary: A Look at the Partial Jurist, 29 JAG J., 219 (1977).
The judge in this case did not do so, but by his remarks and conduct created a substantial doubt as to the fairness of the proceedings. Therefore, I would set aside the findings and sentence.