U.S. v. Clay, 64 M.J. 274

Military Justice Personnel: Court Members: Challenges for Cause

1. it is settled law that a military judge should grant a challenge for cause not only where a court member demonstrates an inelastic disposition concerning an appropriate sentence for the offenses charged, but also where the presence of that member on the panel would create an objective appearance of unfairness in the eyes of the public
2. RCM 912(f)(1)(N) requires the removal of a court member in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality; this rule encompasses both actual and implied bias; actual and implied bias are separate legal tests, not separate grounds for challenge
3. in light of the role of the convening authority in selecting courts-martial members and the limit of one peremptory challenge per side, military judges are enjoined to be liberal in granting defense challenges for cause
4. military judges must follow the liberal grant mandate in ruling on challenges for cause asserted by an accused; an appellate court will overturn a military judge’s ruling on an accused’s challenge for cause where he clearly abuses his discretion in applying the liberal grant mandate
5. the liberal grant mandate is part of the fabric of military law; the mandate recognizes that the trial judiciary has the primary responsibility of preventing both the reality and the appearance of bias involving potential court members
6. in close cases, military judges are enjoined to liberally grant challenges for cause
7. the military judge erred in denying a challenge for cause against the senior member of the court-martial panel and abused his discretion by not applying the liberal grant mandate to the challenge, where the member stated during voir dire that he would be “merciless” on sentencing to someone he found guilty of raping a young female and where all his answers, taken together, created the perception that if he were convinced of the accused’s guilt, he would favor the harshest sentence available, without regard to the other evidence
8. because a challenge to a court member based on actual bias involves judgments regarding credibility, and because the military judge has an opportunity to observe the demeanor of court members and assess their credibility during voir dire, a military judge’s ruling on actual bias is afforded great deference
9. implied bias is an objective test, viewed through the eyes of the public, focusing on the appearance of fairness; accordingly, a military judge’s ruling on implied bias, while not reviewed de novo, is afforded less deference than a ruling on actual bias
10. challenges based on implied bias and the liberal grant mandate address historic concerns about the real and perceived potential for command influence on members’ deliberations
11. a military judge who addresses implied bias by applying the liberal grant mandate on the record will receive more deference on review than one who does not; an appellate court does not expect record dissertations but, rather, a clear signal that the military judge applied the right law; while not required, where the military judge places on the record his analysis and application of the law to the facts, deference is surely warranted
12. in the absence of actual bias, implied bias should be invoked rarely; taken at face value, that statement could be construed to be at odds with the liberal grant mandate; the statement, however, is not a reflection of a legal doctrine expressing judicial reticence or disdain for the finding of implied bias; instead, the statement reflects that where actual bias is found, a finding of implied bias would not be unusual, but where there is no finding of actual bias, implied bias must be independently established
13. in the absence of actual bias, where a military judge considers a challenge based on implied bias, recognizes his duty to liberally grant defense challenges, and places his reasoning on the record, instances in which the military judge’s exercise of discretion will be reversed will indeed be rare; in such circumstances, what might appear a close case on a cold appellate record, might not appear so close when presented from the vantage point of a military judge observing members in person and asking the critical questions that might fill any implied bias gaps left by counsel

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

1. because a challenge to a court member based on actual bias involves judgments regarding credibility, and because the military judge has an opportunity to observe the demeanor of court members and assess their credibility during voir dire, a military judge’s ruling on actual bias is afforded great deference
2. implied bias is an objective test, viewed through the eyes of the public, focusing on the appearance of fairness; accordingly, a military judge’s ruling on implied bias, while not reviewed de novo, is afforded less deference than a ruling on actual bias
3. military judges must follow the liberal grant mandate in ruling on challenges for cause asserted by an accused; an appellate court will overturn a military judge’s ruling on an accused’s challenge for cause where he clearly abuses his discretion in applying the liberal grant mandate
4. a military judge who addresses implied bias by applying the liberal grant mandate on the record will receive more deference on review than one that does not; an appellate court does not expect record dissertations but, rather, a clear signal that the military judge applied the right law; while not required, where the military judge places on the record his analysis and application of the law to the facts, deference is surely warranted
5. in the absence of actual bias, where a military judge considers a challenge based on implied bias, recognizes his duty to liberally grant defense challenges, and places his reasoning on the record, instances in which the military judge’s exercise of discretion will be reversed will indeed be rare; in such circumstances, what might appear a close case on a cold appellate record, might not appear so close when presented from the vantage point of a military judge observing members in person and asking the critical questions that might fill any implied bias gaps left by counsel