U.S. v. Bagstad, 68 M.J. 460

Military Justice Personnel: Military Judge: Discretion

1. in this case, the military judge did not err or abuse his discretion in denying a challenge for cause against an officer member who wrote the fitness report of a subordinate enlisted member sitting on the same panel, even though the panel was ultimately composed of three members, and the officer and this subordinate enlisted member comprised the two-thirds majority sufficient to convict; first, there is no per se rule that a military judge must dismiss a member predicated solely on the fact that a senior member of the court-martial is involved in writing or endorsing the effectiveness reports of junior members; and second, there was no other evidence in the record indicating implied bias from the ratings relationship that would cause the knowledgeable member of the public to perceive that appellant’s court-martial panel was not fair and impartial; and in addition, unlike the CAAF’s decision in Wiesen, 56 MJ 172 (CAAF 2001), where implied bias was implicated when the senior member and his subordinate constituted the two-thirds majority necessary to convict, in this case, at the time of appellant’s challenge for cause, only half of the panel was involved in any senior-subordinate relationship because appellant had not yet exercised his peremptory challenge, and appellant also did not object to the final composition of the three-member panel on the basis that it violated Wiesen; as such, the military judge’s denial of the challenge is viewed from the perspective of when appellant objected and the military judge pronounced his ruling, not with hindsight and knowledge of the final composition of the panel

Military Justice Personnel: Court Members: Challenges for Cause

1. RCM 912(f)(1)(N) mandates that a member be excused whenever he should not sit in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality; this rule encompasses challenges based upon both actual and implied bias
2. implied bias exists when, regardless of an individual member’s disclaimer of bias, most people in the same position would be prejudiced
3. the test for determining an RCM 912(f)(1)(N) challenge for implied bias is objective, viewed through the eyes of the public, focusing on the appearance of fairness; the hypothetical public is assumed to be familiar with the military justice system
4. challenges for actual or implied bias are contextual judgments, evaluated based on the totality of the factual circumstances
5. there is no per se rule that a military judge must dismiss a member predicated solely on the fact that a senior member of the court-martial is involved in writing or endorsing the effectiveness reports of junior members

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

1. in carrying out the objective test for implied bias, an appellate court determines whether the risk that the public will perceive that the accused received something less than a court of fair, impartial members is too high; challenges for actual or implied bias are evaluated based on the totality of the factual circumstances
2. an appellate court’s standard of review on a challenge for cause premised on implied bias is less deferential than abuse of discretion, but more deferential than de novo review; it applies less deference in a case such as this one where the military judge did not place his analysis concerning the senior-subordinate relationship portion of the challenge on the record