U.S. v. Castillo, 74 M.J. 39

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. 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; 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

Military Justice Personnel: Military Judge: Discretion

1. the military judge did not err in denying the implied bias challenges raised by the defense where the panel members’ relationships with trial counsel in this case were not of a qualitative nature to rise above the normative sorts of relationships expected in military service that could impact perceptions of fairness; none of the facts of these relationships constituted a claim of close personal or deferential professional bonding; furthermore, one panel member’s experience as a victim of a similar crime was not similar in theme or close in time to the charged offense; in addition, the fact that one member was the rater of two other members did not require excusal given the broad composition of the panel and the credible disclaimer of the two members that they would not feel constrained in expressing their views due to the rater relationship; and finally, appellant cites no authority indicating that a panel drawn entirely from one brigade is an unusual or unlawful practice in the military justice system; appellant’s asserted challenges for cause lack merit, and they do not combine to create error

Military Justice Personnel: Court Members: Challenges for Cause

1. 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; 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
2. there is no per se rule that a panel member must be excused because he or she has been the victim of a similar crime; however, a panel member’s experience as a victim similar in theme or close in time to the charged offense may, in some cases, present an issue of implied bias
3. it is well settled that a senior-subordinate/rating relationship does not per se require disqualification of a panel member
4. where appellant did not raise the issue of panel members being drawn exclusively from his brigade at trial, as a result, this issue was waived as a discrete ground for challenge

Trial Stages: Appeals: Cumulative Error

1. it is well-established that an appellate court can order a rehearing based on the accumulation of errors not reversible individually

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
2. 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; 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

Trial Stages: Appeals: Waiver

1. where appellant did not raise the issue of panel members being drawn exclusively from his brigade at trial, as a result, this issue was waived as a discrete ground for challenge