U.S. v. Richardson, 61 M.J. 113

First Principles: Constitutional Matters: Due Process

1. as a matter of due process, an accused has a constitutional right, as well as a regulatory right, to a fair and impartial panel

First Principles: Constitutional Matters: Right to a Jury Trial

1. as a matter of due process, an accused has a constitutional right, as well as a regulatory right, to a fair and impartial panel

Military Justice Personnel: Court Members: Generally

1. as a matter of due process, an accused has a constitutional right, as well as a regulatory right, to a fair and impartial panel

Military Justice Personnel: Court Members: Challenges for Cause

1. RCM 912(f)(1)(N) provides that a member shall 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; in furtherance of this rule, military judges are required to test the impartiality of potential panel members on the basis of both actual and implied bias
2. actual bias tests the expressed views of members; challenges for actual bias are evaluated based on a totality of the circumstances
3. implied bias is reviewed under an objective standard, viewed through the eyes of the public, and it is intended to address the perception or appearance of fairness of the military justice system; challenges for implied bias are evaluated based on a totality of the circumstances
4. implied bias review is more than a question as to whether members were honest when they said they would be fair; in the context of implied bias, this case is not about the members’ integrity; taking into account the military judge’s determination that the members were truthful in their responses, the question is would the public nonetheless perceive the trial as being less than fair given the nature of the prior and existing relationships between trial counsel and certain panel members
5. in this case, the appellate record does not demonstrate grounds for removing two court-martial members on the basis of implied bias based on their prior professional contacts with the trial counsel where the record only reflects that they knew the trial counsel from his provision of legal services to their commands and they stated that their prior contact with counsel would not affect their deliberations at appellant’s court-martial
6. in this case, the prior professional contacts between trial counsel and three of the six seated members at appellant’s court-martial, including conversations related to criminal law matters, warranted further inquiry in light of defense counsel’s challenges for implied bias and his request to conduct further voir dire; moreover, counsel in this case sought to ask additional questions while voir dire was still ongoing; accordingly, this Court concludes that the military judge abused his discretion by failing to apply the correct legal standard for implied bias to the challenges of these members; there was a further abuse of discretion in the denial of counsel’s request to reopen voir dire in a case raising implied bias considerations

Trial Stages: Merits: Trial Procedures › Voir dire

1. the procedural vehicle for testing for member bias is voir dire; voir dire examination serves to protect the right to a fair trial by exposing possible biases, both known and unknown, on the part of potential jurors; generally, the procedures for voir dire are within the discretion of the trial judge; RCM 912(d) provides that the military judge may permit the parties to conduct the examination of members or may personally conduct the examination; in the latter event, the military judge shall permit the parties to supplement the examination by such further inquiry as the military judge deems proper or the military judge shall submit to the members such additional questions by the parties as the military judge deems proper
2. when it occurs to counsel conducting the voir dire that further inquiry was omitted on a critical issue, judges should be patient and allow that inquiry to be conducted
3. in a close-knit system like the military justice system, situations will arise and may at times be unavoidable where members might have had previous or current official contact with the trial participants; where such situations are identified, military judges should not hesitate to test these relationships for actual and implied bias; and a factual record should be created that will demonstrate to an objective observer that notwithstanding the relationships at issue, the accused received a fair trial; member voir dire is the mechanism for doing so
4. in this case, the prior professional contacts between trial counsel and three of the six seated members at appellant’s court-martial, including conversations related to criminal law matters, warranted further inquiry in light of defense counsel’s challenges for implied bias and his request to conduct further voir dire; moreover, counsel in this case sought to ask additional questions while voir dire was still ongoing; accordingly, this Court concludes that the military judge abused his discretion by failing to apply the correct legal standard for implied bias to the challenges of these members; there was a further abuse of discretion in the denial of counsel’s request to reopen voir dire in a case raising implied bias considerations

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

1. a military judge’s ruling on a challenge for cause is reviewed for an abuse of discretion; military judges are afforded a high degree of deference on rulings involving actual bias; by contrast, issues of implied bias are reviewed under a standard less deferential than abuse of discretion but more deferential than de novo; as this Court has often stated, implied bias is reviewed under an objective standard, viewed through the eyes of the public, and it is intended to address the perception or appearance of fairness of the military justice system; actual bias, on the other hand, tests the expressed views of members; challenges for actual or implied bias are evaluated based on a totality of the circumstances
2. the discretion of the military judge in the conduct of voir dire is not without limits; the standard of review is whether there was a clear abuse of discretion by the judge in denying individual or group voir dire