U.S. v. Townsend, 65 M.J. 460

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. military judges should apply a liberal grant mandate in ruling on challenges for cause asserted by an accused
2. there is no basis for the application of the liberal grant policy when a military judge is ruling on the government’s challenges for cause

Military Justice Personnel: Court Members: Generally

1. an accused is entitled to a trial by members who are qualified, properly selected, and impartial
2. law enforcement personnel are not per se disqualified from service as court members; if status as a law enforcement officer is not a disqualification, it follows that a mere familial relationship with a member of the law enforcement community creates no greater basis upon which to disqualify a member than law enforcement status itself
3. lawyers are not per se disqualified as court-martial members unless they have served in one of the capacities explicitly set forth as a disqualification in the UCMJ; it follows that one who only aspires to become a lawyer is not disqualified and presents no greater threat to the fairness of a proceeding than does a court member who is a fully trained and licensed attorney

Military Justice Personnel: Court Members: Challenges for Cause

1. RCM 912 encompasses challenges based upon both actual bias and implied bias; RCM 912(f)(1)(N) provides a challenge where it appears an individual should not sit as a member in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality; implied bias exists when, despite a disclaimer, most people in the same position as the court member would be prejudiced
2. to test whether there is substantial doubt about the fairness of the trial, one evaluates implied bias objectively, through the eyes of the public, reviewing the perception or appearance of fairness of the military justice system; the inquiry is to determine whether the risk that the public will perceive that the accused received something less than a court of fair, impartial members is too high
3. military judges should apply a liberal grant mandate in ruling on challenges for cause asserted by an accused
4. there is no basis for the application of the liberal grant policy when a military judge is ruling on the government’s challenges for cause
5. it might be possible that a particular member of a court-martial would require rehabilitation to such an extent that the rehabilitation itself would give rise to reasonable questions about the fairness of the proceeding if that member were to remain on the panel; the need to engage in extensive rehabilitation of a potential court member may present the very type of close situation that supports application of the liberal grant mandate; however, in this case, disqualification of a court member for implied bias was not warranted on the ground that the member required extensive rehabilitation, where each side questioned the member only once, and there was no extensive back and forth effort to undermine and then rehabilitate the member’s qualifications to sit as a member of the court
6. in this case, the military judge did not abuse his discretion in denying appellant’s challenge for cause to a member on the basis of implied bias, where based on the facts of this record, none of the reasons offered in support of the challenge – that the member had a close relationship with his law enforcement father, was a law student at the time of trial with a career goal of being a criminal prosecutor, was disposed to give a law enforcement officer’s testimony more credibility than he would give to other witnesses, and did not hold defense attorneys in high regard -, either alone or cumulatively, served to disqualify the member from serving or would result in the public perceiving that appellant received less than a court of fair, impartial members; the record reflects that the member understood his role as a court member and that he would follow the instructions of the military judge; examining the cumulative impact of the member’s disclaimers in light of the liberal grant mandate, this is not a close case where failure to apply the liberal grant mandate is fatal; nothing in the record suggests that the member was hardened in his views on criminal law by virtue of his respect for his father or his father’s background in law enforcement; even though the voir dire reflected that the member had respect for law enforcement, that respect did not translate into any objectively discernable bias; in addition, although the member indicated that he would afford a certain amount of credibility to a police officer with a good record, his view was not so inflexible that it would not yield to the military judge’s instructions on credibility; with respect to the member’s enrollment in law school and his desire to become a prosecutor, the record shows that he was aware of the proper role of a court member and would adhere to that role and that he would cast aside any legal notions he developed from his legal education and would strictly follow the instructions of the military judge; finally, the claim that the member did not like defense lawyers or did not hold defense lawyers in high regard was not an accurate reflection of his responses during individual voir dire; his remarks could not be reasonably interpreted to imply that he disliked licensed, professional defense counsel, military or civilian; the record reflects that the factors asserted as a basis for implied bias were not disqualifying or egregious and would not, individually or cumulatively, result in the public perception that appellant received something less than a court-martial of fair and impartial members; in fact, a dispassionate, objective review of this record reflects quite the opposite; the member understood and appreciated the role of a court member, including his obligation to apply the law as instructed upon by the military judge and his obligation to remain unbiased; a reasonable observer, considering the record as a whole, would have harbored no questions about the member’s neutrality, impartiality, and fairness

Military Justice Personnel: Court Members: Eligibility/Selection

1. law enforcement personnel are not per se disqualified from service as court members; if status as a law enforcement officer is not a disqualification, it follows that a mere familial relationship with a member of the law enforcement community creates no greater basis upon which to disqualify a member than law enforcement status itself
2. lawyers are not per se disqualified as court-martial members unless they have served in one of the capacities explicitly set forth as a disqualification in the UCMJ; it follows that one who only aspires to become a lawyer is not disqualified and presents no greater threat to the fairness of a proceeding than does a court member who is a fully trained and licensed attorney

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

1. to test whether there is substantial doubt about the fairness of the trial, one evaluates implied bias objectively, through the eyes of the public, reviewing the perception or appearance of fairness of the military justice system; the inquiry is to determine whether the risk that the public will perceive that the accused received something less than a court of fair, impartial members is too high
2. an appellate court reviews issues of implied bias for abuse of discretion
3. although an appellate court reviews issues of implied bias for abuse of discretion, the objective nature of the inquiry dictates that it accord a somewhat less deferential standard to implied bias determinations of a military judge
4. where a military judge does not indicate on the record that he has considered the liberal grant mandate in ruling on a challenge for implied bias, an appellate court will accord that decision less deference during its review of the ruling; consequently, it will overturn a military judge’s ruling on an accused’s challenge where he clearly abuses his discretion in applying the liberal grant mandate; in this case, where the military judge assessed the credibility and demeanor of a potential member on the record, but the judge’s ruling denying the challenge for cause of the member did not reflect whether he considered either implied bias or the liberal grant rule, less deference is accorded to his ruling than to one which reflected consideration of implied bias in the context of the liberal grant mandate