U.S. v. Downing, 56 M.J. 419

Military Justice Personnel: Court Members: Challenges for Cause

1. the burden of persuasion remains with the party making a challenge for cause against a potential court member
2. military judges are afforded a high degree of deference on rulings involving actual bias
3. issues of implied bias are reviewed under an objective standard, viewed through the eyes of the public, addressing the perception or appearance of fairness of the military justice system; the standard is less deferential than abuse of discretion, but more deferential than de novo
4. the military judge’s voir dire and ruling did not reflect that he applied the correct legal standard to appellant’s challenge for implied bias where: (1) the military judge stated that “folks are friends with folks,” an analysis falling qualitatively short, if indeed it was intended to address implied bias at all; (2) it framed but does not squarely address the essential question -- was the military judge satisfied that an objective public observer would find this level of friendship between the prosecutor and a member of the court-martial panel consonant with a fair and impartial system of military justice?; (3) there was no indication that the military judge considered the effect, if any, that the liberal-grant mandate should have on his ruling
5. appellant did not met his burden of establishing that grounds for challenge against a member based on implied bias existed; applying the liberal-grant mandate, the military judge could have granted appellant’s challenge for cause, but he was not required to do so on the following facts: (1) the member and trial counsel were company grade friends based on professional assignment to the same installation; (2) they knew each other for six months; (3) that they had cause to speak by telephone approximately ten times in the two weeks preceding trial, and that this contact occurred during duty hours; (4) the member’s duties necessarily required such contact during duty hours; (5) this friendship extended beyond professional hours to social settings; (6) the member indicated she went to a beach house that trial counsel shared with other officers, but not necessarily to see trial counsel; (7) trial counsel at some point bought a car from the member; and (8) the military judge observed a look of incredulity when it was suggested to the member that her friendship with trial counsel might affect her impartiality, a fact relevant to an objective observer’s consideration

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

1. the burden of persuasion remains with the party making a challenge for cause against a potential court member
2. military judge’s ruling on a challenge for cause is reviewed for an abuse of discretion