U.S. v. Napolitano, 53 M.J. 162

Military Justice Personnel: Court Members: Challenges for Cause

1. although member’s comment on pretrial questionnaire expressed a negative perception of attorneys, the entirety of the member’s responses in court made it clear that he did not have an actual bias against appellant’s civilian defense counsel
2. implied bias focuses on the perception or appearance of fairness in the military justice system and exists when, despite a member’s disclaimer of bias, most people in the same position would be prejudiced; implied bias should be invoked rarely
3. no implied bias existed despite member’s pretrial questionnaire indicating disapproval of one civilian defense counsel (not appellant’s) where, after proper instructions from the trial judge, the member retracted this disapproval and stated that he held no bias against civilian defense counsel in general or appellant as a result of his civilian counsel of choice

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

1. a military judge’s denial of a challenge for cause will not be overturned unless there is a clear abuse of discretion by the judge in applying the liberal-grant policy
2. a military judge is given great deference in deciding whether a member is actually bias because actual bias is a question of fact; less deference is given to the military judge’s determination when reviewing a finding on implied bias because it is objectively viewed through the eyes of the public