U.S. v. Woods, 74 M.J. 238

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. if, after weighing the arguments for the implied bias challenge, the military judge finds it a close question, the challenge should be granted

Military Justice Personnel: Military Judge: Discretion

1. in this case, the military judge erred in denying a defense challenge for cause on grounds of implied bias to the senior member of the panel where (1) on her preliminary member’s questionnaire, the senior member stated her belief that “the enforcement of ‘you are guilty until proven innocent’ (just the opposite as in the civilian sector) is essential because the military needs to be held to a higher standard just for reasons of our mission;” (2) during voir dire, she elaborated on this response, but reasonable observers could interpret her responses as confusing rather than clarifying her views; and (3) given the specific facts of this case and the unique structure of the military justice system, a reasonable member of the public might well question the fairness of including this member on the panel; the defense challenge to this member’s participation on the panel presented, at minimum, a close question, and particularly in view of the liberal grant mandate, the military judge erred in denying the defense challenge for cause on grounds of implied bias, and that error prejudiced appellant’s substantial rights

Military Justice Personnel: Court Members: Generally

1. in the military justice system, panel members are chosen by the same individual, the convening authority, who decides whether to bring criminal charges forward to trial
2. under the UCMJ, the convening authority is charged to select members who, in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament
3. members are not and should not be charged with independent knowledge of the law; this is not just any principle of law, however; it is one of the fundamental tenets of U.S. criminal law that predates the founding of the republic

Military Justice Personnel: Court Members: Challenges for Cause

1. in this case, the military judge erred in denying a defense challenge for cause on grounds of implied bias to the senior member of the panel where (1) on her preliminary member’s questionnaire, the senior member stated her belief that “the enforcement of ‘you are guilty until proven innocent’ (just the opposite as in the civilian sector) is essential because the military needs to be held to a higher standard just for reasons of our mission;” (2) during voir dire, she elaborated on this response, but reasonable observers could interpret her responses as confusing rather than clarifying her views; and (3) given the specific facts of this case and the unique structure of the military justice system, a reasonable member of the public might well question the fairness of including this member on the panel; the defense challenge to this member’s participation on the panel presented, at minimum, a close question, and particularly in view of the liberal grant mandate, the military judge erred in denying the defense challenge for cause on grounds of implied bias, and that error prejudiced appellant’s substantial rights
2. with respect to challenges for cause, actual bias is personal bias that will not yield to the military judge’s instructions and the evidence presented at trial
3. with respect to challenges for cause, the test for implied bias is, ultimately in the military context, one of public perception; it is an objective test, and at the core of that objective test is the consideration of the public’s perception of fairness in having a particular member as part of the court-martial panel; in reaching a determination of whether there is implied bias, namely, a perception or appearance of fairness of the military justice system, the totality of the circumstances should be considered
4. a panel member’s mistake as to the proper burden of proof in a criminal trial, without more, does not necessarily requires a finding of implied bias
5. if, after weighing the arguments for the implied bias challenge, the military judge finds it a close question, the challenge should be granted

Military Justice Personnel: Convening Authority: Generally

1. in the military justice system, panel members are chosen by the same individual, the convening authority, who decides whether to bring criminal charges forward to trial
2. under the UCMJ, the convening authority is charged to select members who, in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament

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

1. a military judge’s ruling on a challenge for cause is reviewed for an abuse of discretion; military judges are afforded a high degree of deference on rulings involving actual bias; this reflects, among other things, the importance of demeanor in evaluating the credibility of a member’s answers during voir dire; by contrast, issues of implied bias are reviewed under a standard less deferential than abuse of discretion, but more deferential than de novo
2. the test for implied bias is, ultimately in the military context, one of public perception: unlike the test for actual bias, an appellate court looks to an objective standard in determining whether implied bias exists; the core of that objective test is the consideration of the public’s perception of fairness in having a particular member as part of the court-martial panel; in reaching a determination of whether there is implied bias, namely, a perception or appearance of fairness of the military justice system, the totality of the circumstances should be considered; the test takes into account, among other distinct military factors, the confidence appellate courts have that military members will follow the instructions of military judges and thus, while it will often be possible to rehabilitate a member on a possible question of actual bias, questions regarding the appearance of fairness may nonetheless remain; the question before an appellate court is whether the risk that the public will perceive that the accused received something less than a court of fair, impartial members is too high; to answer this question, an appellate court reviews the totality of the circumstances, and assumes the public to be familiar with the unique structure of the military justice system