U.S. v. Hollings, 65 M.J. 116

Military Justice Personnel: Court Members: Challenges for Cause

1. RCM 912(f)(1)(G) provides that a court member shall be excused for cause whenever it appears that the member has acted in the same case as convening authority or as the legal officer or staff judge advocate to the convening authority; Article 1 of the UCMJ defines legal officer as any commissioned officer designated to perform legal duties for a command
2. in this case, a challenged court member who, in his capacity as personnel officer for appellant’s squadron, reviewed the squadron’s weekly legal report and certified unit diaries recording legal actions on days that the legal officer was unavailable, did not meet the Article 1 definition of legal officer, did not act as a legal officer, and thus was not subject to challenge as a legal officer under RCM 912(f)(1)(G)
3. in this case, there was no evidence of bias, actual or implied, that would support the removal for cause of a court member who, in his capacity as the personnel officer for appellant’s squadron, reviewed the squadron’s weekly legal report and had seen appellant’s name and the charges against him represented on that report; the court member was not a career legal officer nor was he a legal officer at the time of appellant’s court-martial; also, there was no indication that he knew appellant, and the only information he received in the weekly legal report about the case pertained to appellant’s name and the charges against him, facts of record immediately evident to anyone attending appellant’s court-martial
4. military judges are enjoined to follow the liberal grant mandate in evaluating challenges for cause; a military judge who, in determining whether a court member should be removed for implied bias, addresses the concept of the liberal grant mandate on the record, is entitled to greater deference than one who does not
5. the liberal grant mandate recognizes the military judge’s responsibility to prevent both the reality and the appearance of bias involving potential court members; RCM 912(f)(1)(N) requires the removal of a member in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality

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

1. a military judge who, in determining whether a court member should be removed for implied bias, addresses the concept of the liberal grant mandate on the record, is entitled to greater deference than one who does not