U.S. v. Peters, 74 M.J. 31

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. there is no per se rule of disqualification when a member knows or has worked with trial counsel or defense counsel; rather, such relationships are evaluated through the lens of RCM 912(f)(1)(N) and the doctrines of actual and implied bias
2. whereas a military judge can observe the demeanor of the court members in order to determine credibility in the case of actual bias with respect to the challenge of a court member, cases of implied bias are based upon an objective test and therefore the military judge is given less deference in such cases
3. the military judge is mandated to err on the side of granting a challenge of a court member; this is what is meant by the liberal grant mandate; because the interests of justice are best served by addressing potential member issues at the outset of judicial proceedings, in close cases military judges are enjoined to liberally grant challenges for cause; in other words, if after weighing the arguments for the implied bias challenge, the military judge finds it a close question, the challenge should be granted; this mandate stems from a long-standing recognition of certain unique elements in the military justice system including limited peremptory rights and the manner of appointment of court-martial members that presents perils that are not encountered elsewhere; it also serves as a preventative measure because it is at the preliminary stage of the proceedings that questions involving member selection are relatively easy to rapidly address and remedy
4. although an appellate court does not expect record dissertations from the military judge’s decision on implied bias, it does require a clear signal that the military judge applied the right law; incantation of the legal test without analysis is rarely sufficient in a close case
5. where a military judge determines not to grant the challenge, additional analysis on the record will better inform appellate courts in their review and determination as to whether there was an abuse of discretion; a military judge is afforded less deference if an analysis of the implied bias challenge on the record is not provided
6. RCM 912(f)(1)(N) sets the basis for an implied bias challenge, which stems from the historic concerns about the real and perceived potential for command influence in courts-martial; a military judge 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
7. 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; while cast as a question of public perception, this test may well reflect how members of the armed forces, and indeed the accused, perceive the procedural fairness of the trial as well
8. at times, appellate courts have cast the test for implied bias as one asking whether most people in the same position would be prejudiced; that may well inform the implied bias analysis, but this question is better oriented to objectively evaluate actual bias than to serve as the test for implied bias
9. a military judge tests for implied bias not on the subjective qualities of the panel member, but on the effect that panel member’s presence will have on the public’s perception of whether the appellant’s trial was fair; thus, although a panel member’s good character can contribute to a perception of fairness, it is but one factor that must be considered in the context of the other issues raised concerning that individual’s panel membership
10. the well-settled law that requires military judges to consider on the record whether to grant causal challenges exists not merely to have the words of the test preserved on the record, but to show that the grounds for the challenge were given serious and careful consideration in the first instance
11. MRE 912 generally, and the Military Judges’ Benchbook specifically, direct counsel and military judges to explore relationships among panel members and others involved in the case, to ensure that they are not qualitatively of a sort that reflects the kind of bond that would undermine the fairness of a proceeding or raise the prospect of appearing to do so
12. in this case, the military judge’s reasoning for denying the challenge for cause was problematic for two reasons; first, he did not engage the specific grounds for challenge of the member’s panel membership – the member’s professional relationship with trial counsel, special court-martial convening authority, and the investigating officer; rather, his reasoning relied solely on the member’s demeanor and thoughtfulness in answering the voir dire questions; in testing for implied bias, the judge should not have focused on the subjective qualities of the panel member, but on the effect that panel member’s presence would have on the public’s perception of whether appellant’s trial was fair; second, although the military judge here said he was considering the liberal grant mandate, the record does not provide further analysis as to why, given the specific factors in this case, the balance tipped in favor of denying the challenge

Military Justice Personnel: Military Judge: Discretion

1. this is a case, where the military judge did no more than invoke the implied bias doctrine and where the facts otherwise showed an unusually strong bond between trial counsel and a member of the panel, the military judge abused his discretion in not erring on the side of caution and excusing the member on the ground of implied bias; here, the member’s relationship to trial counsel could undermine the perception of fairness in the proceedings where (1) the member regularly relied upon trial counsel for legal advice on military justice matters, (2) the member trusted that legal advice and believed that trial counsel did good work as a lawyer, (3) as soon as the member was summoned to be a court-martial panel member in this case, he sought trial counsel’s input about whether it was common that someone from within the brigade serve on a panel, (4) despite knowing that he would be serving as a panel member in this case, the member also called trial counsel the night before voir dire, and although they did not talk about appellant’s case, they did sign off the conversation by saying “see you tomorrow,” and (5) in objecting to appellant’s causal challenge, trial counsel relied upon his personal knowledge of the member’s character to argue on behalf of keeping him on the panel; the totality of these factors support the conclusion that appellant had good grounds for challenging the member’s participation on the panel based on implied bias; the member and trial counsel’s relationship went beyond what would be perceived as fair to an appellant in the context of a typical court-martial; in addition, the fact that the special court-martial convening authority was the member’s rater, and the investigating officer in the case was the member’s XO also contributed to the totality of the factors considered in determining that the challenge against the member should have been granted

Military Justice Personnel: Court Members: Challenges for Cause

1. there is no per se rule of disqualification when a member knows or has worked with trial counsel or defense counsel; rather, such relationships are evaluated through the lens of RCM 912(f)(1)(N) and the doctrines of actual and implied bias
2. whereas a military judge can observe the demeanor of the court members in order to determine credibility in the case of actual bias with respect to the challenge of a court member, cases of implied bias are based upon an objective test and therefore the military judge is given less deference in such cases
3. the military judge is mandated to err on the side of granting a challenge of a court member; this is what is meant by the liberal grant mandate; because the interests of justice are best served by addressing potential member issues at the outset of judicial proceedings, in close cases military judges are enjoined to liberally grant challenges for cause; in other words, if after weighing the arguments for the implied bias challenge, the military judge finds it a close question, the challenge should be granted; this mandate stems from a long-standing recognition of certain unique elements in the military justice system including limited peremptory rights and the manner of appointment of court-martial members that presents perils that are not encountered elsewhere; it also serves as a preventative measure because it is at the preliminary stage of the proceedings that questions involving member selection are relatively easy to rapidly address and remedy
4. although an appellate court does not expect record dissertations from the military judge’s decision on implied bias, it does require a clear signal that the military judge applied the right law; incantation of the legal test without analysis is rarely sufficient in a close case
5. where a military judge determines not to grant the challenge, additional analysis on the record will better inform appellate courts in their review and determination as to whether there was an abuse of discretion; a military judge is afforded less deference if an analysis of the implied bias challenge on the record is not provided
6. RCM 912(f)(1)(N) sets the basis for an implied bias challenge, which stems from the historic concerns about the real and perceived potential for command influence in courts-martial; unlike the test for actual bias, a military judge 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
7. 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; while cast as a question of public perception, this test may well reflect how members of the armed forces, and indeed the accused, perceive the procedural fairness of the trial as well
8. at times, appellate courts have cast the test for implied bias as one asking whether most people in the same position would be prejudiced; that may well inform the implied bias analysis, but this question is better oriented to objectively evaluate actual bias than to serve as the test for implied bias
9. a military judge tests for implied bias not on the subjective qualities of the panel member, but on the effect that panel member’s presence will have on the public’s perception of whether the appellant’s trial was fair; thus, although a panel member’s good character can contribute to a perception of fairness, it is but one factor that must be considered in the context of the other issues raised concerning that individual’s panel membership
10. the well-settled law that requires military judges to consider on the record whether to grant causal challenges exists not merely to have the words of the test preserved on the record, but to show that the grounds for the challenge were given serious and careful consideration in the first instance
11. MRE 912 generally, and the Military Judges’ Benchbook specifically, direct counsel and military judges to explore relationships among panel members and others involved in the case, to ensure that they are not qualitatively of a sort that reflects the kind of bond that would undermine the fairness of a proceeding or raise the prospect of appearing to do so
12. in this case, the military judge’s reasoning for denying the challenge for cause was problematic for two reasons; first, he did not engage the specific grounds for challenge of the member’s panel membership – the member’s professional relationship with trial counsel, special court-martial convening authority, and the investigating officer; rather, his reasoning relied solely on the member’s demeanor and thoughtfulness in answering the voir dire questions; in testing for implied bias, the judge should not have focused on the subjective qualities of the panel member, but on the effect that panel member’s presence would have on the public’s perception of whether appellant’s trial was fair; second, although the military judge here said he was considering the liberal grant mandate, the record does not provide further analysis as to why, given the specific factors in this case, the balance tipped in favor of denying the challenge

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

1. an appellate court reviews implied bias challenges pursuant to a standard that is less deferential than abuse of discretion, but more deferential than de novo review; whereas a military judge can observe the demeanor of the court members in order to determine credibility in the case of actual bias, cases of implied bias are based upon an objective test and therefore the military judge is given less deference in such cases
2. although an appellate court does not expect record dissertations from the military judge’s decision on implied bias, it does require a clear signal that the military judge applied the right law; incantation of the legal test without analysis is rarely sufficient in a close case
3. where a military judge determines not to grant the challenge, additional analysis on the record will better inform appellate courts in their review and determination as to whether there was an abuse of discretion; a military judge is afforded less deference if an analysis of the implied bias challenge on the record is not provided
4. RCM 912(f)(1)(N) sets the basis for an implied bias challenge, which stems from the historic concerns about the real and perceived potential for command influence in courts-martial; 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
5. 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; while cast as a question of public perception, this test may well reflect how members of the armed forces, and indeed the accused, perceive the procedural fairness of the trial as well
6. at times, appellate courts have cast the test for implied bias as one asking whether most people in the same position would be prejudiced; that may well inform the implied bias analysis, but this question is better oriented to objectively evaluate actual bias than to serve as the test for implied bias
7. an appellate court tests for implied bias not on the subjective qualities of the panel member, but on the effect that panel member’s presence will have on the public’s perception of whether the appellant’s trial was fair; thus, although a panel member’s good character can contribute to a perception of fairness, it is but one factor that must be considered in the context of the other issues raised concerning that individual’s panel membership