U.S. v. Strand, 59 M.J. 455

Military Justice Personnel: Court Members: Generally

1. an accused has a constitutional right, as well as a regulatory right, to a fair and impartial panel; RCM 912(f)(1)(N) requires that a member be excused for cause whenever it appears that the member should not sit as a member in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality; while this rule applies to both actual and implied bias, the thrust of this rule is implied bias and the perception or appearance of fairness of the military justice system; the rule reflects the President’s concern with avoiding even the perception of bias, predisposition, or partiality
2. it is clear that a military judge may excuse a member sua sponte

Military Justice Personnel: Court Members: Challenges for Cause

1. this Court has generally found that when there is no actual bias, implied bias should be invoked rarely; due process does not require a new trial every time a juror has been placed in a potentially compromising situation; instead, this Court has observed that implied bias exists when, regardless of an individual member’s disclaimer of bias, most people in the same position would be prejudiced [i.e. biased]; in making judgments regarding implied bias, this Court looks at the totality of the factual circumstances
2. based on the totality of the circumstances, we hold that a military judge should not have sua sponte dismissed the acting convening authority’s son from the panel pursuant to the doctrine of implied bias in order to ensure public confidence in the legality, fairness, and impartiality of appellant’s court-martial where (1) the familial relationship was openly discussed during voir dire, (2) counsel were afforded ample opportunity to explore any potential concerns regarding the member’s presence on the panel, (3) defense counsel demonstrated the capability to identify matters of potential conflict regarding other members along with his ample use of the challenge mechanism, and (4) appellant did not make a showing of actual bias, nor argue that the familial relationship influenced the panel’s deliberations
3. a member’s unequivocal statement of a lack of bias can carry weight when considering the application of implied bias

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

1. a judge’s decision whether or not to excuse a member sua sponte is subsequently reviewed for an abuse of discretion
2. this Court has given the military judge great deference when deciding whether actual bias exists because it is a question of fact, and the judge has observed the demeanor of the challenged member; this Court, however, gives less deference to the military judge when reviewing a finding on implied bias because it is objectively viewed through the eyes of the public
3. implied bias is viewed through the eyes of the public, focusing on the appearance of fairness; as a result, an objective standard is used when reviewing the judge’s decision regarding implied bias; thus, issues of implied bias are reviewed under a standard less deferential than abuse of discretion but more deferential than de novo
4. (this Court has generally found that when there is no actual bias, implied bias should be invoked rarely; due process does not require a new trial every time a juror has been placed in a potentially compromising situation; instead, this Court has observed that implied bias exists when, regardless of an individual member’s disclaimer of bias, most people in the same position would be prejudiced [i.e. biased]); in making judgments regarding implied bias, this Court looks at the totality of the factual circumstances)