U.S. v. Leonard, 63 M.J. 398

First Principles: Constitutional Matters: Right to a Jury Trial

1. a servicemember does not have a Sixth Amendment right to trial by jury; however, Congress has established the court-martial as the institution to provide military justice to service members; Congress has also afforded every servicemember the right to have a court-martial of panel members for both a general and a special court-martial

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. military judges are enjoined to follow a liberal grant mandate in evaluating challenges for cause because implied bias is reviewed under an objective standard, through the eyes of the public and focusing on the appearance of fairness
2. a military judge abused his discretion and violated the liberal grant mandate in denying defense challenge of a court member for cause where that member revealed that the alleged rape victim’s responsibilities for his flight gear included packing his parachute and servicing his flight helmet; in an acquaintance rape case where the credibility of the alleged victim was the linchpin of the case, the member’s significant relationship of trust with the alleged victim would diminish the public perception of a fair and impartial court-martial panel, undermine the appearance of fairness in the military justice system, and give rise to implied bias

Military Justice Personnel: Court Members: Generally

1. the cornerstone of the military justice system is the right to members who are fair and impartial; indeed, this right to fair and impartial members is so important that the process of selecting a court-martial panel enjoys protections under the Constitution, statute, regulations, and case law
2. RCM 912(f)(4) states that when a challenge for cause has been denied, failure by the challenging party to exercise a peremptory challenge against any member shall constitute waiver of further consideration of the challenge upon later review; however, when a challenge for cause is denied, a peremptory challenge by the challenging party against any member shall preserve the issue for later review, provided that when the member who was unsuccessfully challenged for cause is peremptorily challenged by the same party, that party must state that it would have exercised its peremptory challenge against another member if the challenge for cause had been granted; the analysis to RCM 912(f)(4) explains that the requirement of preserving the objection for the record is designed to prevent a windfall to a party which had no intent to exercise its peremptory challenge against any other member; when the requirements of RCM 912(f)(4) are met, an appellate court will not apply waiver
3. when counsel unsuccessfully challenges a member for cause and then peremptorily challenges that member, the issue is waived, unless counsel states on the record that the peremptory challenge would have been used against another member if the challenge for cause had been granted
4. where trial defense counsel used his sole peremptory challenge to remove a court member from the panel, and did not state on the record that the peremptory challenge would have been exercised against another member if the challenge for cause had been granted, any error as to that removed member was waived
5. trial defense counsel preserved for appellate review the issue whether the military judge abused his discretion in denying a defense causal challenge to a court-member where the defense counsel had previously used his single peremptory challenge against another member; the issue was not waived for failure to state on the record that the challenge would have been used elsewhere; the waiver provision could not apply to the challenged member because the defense counsel had used his single peremptory challenge against another member and did not have an additional peremptory challenge to use; trial defense counsel could not be required to state that he would have used a nonexistent peremptory challenge against another member
6. the military judge abused his discretion and violated the liberal grant mandate in denying defense challenge of a court member for cause where that member revealed that the alleged rape victim’s responsibilities for his flight gear included packing his parachute and servicing his flight helmet; in an acquaintance rape case where the credibility of the alleged victim was the linchpin of the case, the member’s significant relationship of trust with the alleged victim would diminish the public perception of a fair and impartial court-martial panel, undermine the appearance of fairness in the military justice system, and give rise to implied bias

Military Justice Personnel: Court Members: Challenges for Cause

1. RCM 912(f)(1)(N) provides that a member should not sit where his service would raise substantial doubt as to the legality, fairness, and impartiality of the proceedings; this rule includes challenges based on actual bias as well as implied bias; the two purposes of RCM 912(f)(1)(N) are to protect the actual fairness of the court-martial and to bolster the appearance of fairness of the military justice system in the eyes of the public
2. 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
3. while actual bias is reviewed through the eyes of the military judge or the court members, 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 of the military justice system; the test for implied bias also carries with it an element of actual bias; thus, there is implied bias when most people in the same position would be prejudiced; when there is no actual bias, implied bias should be invoked rarely

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

1. 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; while actual bias is reviewed through the eyes of the military judge or the court members, 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 of the military justice system; the test for implied bias also carries with it an element of actual bias; thus, there is implied bias when most people in the same position would be prejudiced; when there is no actual bias, implied bias should be invoked rarely
2. a military judge’s decision whether to grant a challenge for cause based on actual bias is reviewed for an abuse of discretion; this deferential standard exists because the judge has observed the demeanor of the participants in the voir dire and challenge process
3. a military judge is given less deference on questions of implied bias; implied bias is reviewed through the eyes of the public