U.S. v. Wiesen, 56 M.J. 172

Military Justice Personnel: Court Members: Challenges for Cause

1. (Recon. at 57 MJ 48 ) (the test for actual bias is whether any bias is such that it will not yield to the evidence presented and the judge’s instructions)
2. members shall be excused in cases of actual bias or implied bias, and military judges must follow a liberal-grant mandate in ruling on challenges for cause
3. a senior-subordinate/rating relationship does not per se require disqualification of a panel member
4. availability of a peremptory challenge does not remove the prejudice arising from an erroneous ruling on a challenge for cause; the erroneous denial of a challenge for cause prejudices an accused’s right to exercise a peremptory challenge against another member of his choice
5. implied bias is reviewed under an objective standard, viewed through the eyes of the public; the focus is on the perception or appearance of fairness in the military justice system and the test carries with it an element of actual bias; thus, there is implied bias when most people in the same position would be prejudiced
6. where the president of the panel and his subordinates comprised the two-thirds majority sufficient to convict, an intolerable strain is placed on public perception of the military justice system; this factual scenario is outside the margin of tolerance reflected in case law, and there is simply too high a risk that the public will perceive that the accused received something less than a jury of ten equal members
7. the government failed to demonstrate that operational deployments or needs precluded other suitable officers from reasonably serving on a panel where the president of the panel and his subordinates comprised the two-thirds majority sufficient to convict; thus, there was no necessity for the president/Brigade Commander to participate
8. implied bias undermines public confidence in the military justice system regardless of the offense
9. court expresses "no doubt" that viewed through the eyes of the public, serious doubts about the fairness of the military justice system are raised when the senior member of the panel and those he commanded or supervised commanded a two-thirds majority of members that alone could convict the accused

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

1. given the factual underpinning for testing actual bias, a military judge’s findings regarding actual bias are reviewed for an abuse of discretion
2. issues of implied bias, which entail both factual inquiry and objective application of legal principle, are reviewed under a less deferential standard