U.S. v. Rogers, 75 M.J. 270

Military Justice Personnel: Military Judge: Discretion

1. in this case involving allegations of sexual assault, the military judge abused her discretion when she denied a defense challenge to a member for implied bias where that member’s misunderstanding of about an intoxicated person’s ability to give consent and her inferred burden-of-proof shift from the government to the defense would cause an objective observer, under the totality of the circumstances, to have substantial doubt about the fairness of the court-martial panel; under the facts of this case, the member’s understanding of the law on intoxication and consent was critical, and the military judge never issued a curative instruction despite the member’s strongly held opinion that it was not possible for an intoxicated person to give consent to sexual activity if that person was too drunk to remember having sex and that the government would have to prove otherwise; furthermore, when the member asked for a definition of a “competent” person with regard to a person who could give consent, the military judge instructed her that there was no further definition of “competent” available and advised her to rely on her understanding of the common definition of the word; as such, not only did the military judge fail to instruct the member to disregard her personally held incorrect belief, the response effectively endorsed her erroneous understanding, both as to whether an intoxicated person can give consent and as to which party had the burden of proof on that issue

Military Justice Personnel: Court Members: Challenges for Cause

1. the core of the implied bias test is the consideration of the public’s perception of fairness in having a particular member as part of the court-martial panel
2. it has never been incumbent upon a member to sua sponte assert that he or she would not consider a military judge’s instruction and failure of a member to do so does not provide positive support for a finding that the member is fair or impartial
3. RCM 912(f)(1)(N) sets forth the basis for an implied bias challenge; the focus of this rule is on the perception or appearance of fairness of the military justice system; while actual bias is reviewed through the eyes of the military judge or the court members, implied bias is reviewed under an objective standard, viewed through the eyes of the public; in reaching a determination of whether there is implied bias, the totality of the circumstances should be considered
4. in this case involving allegations of sexual assault, the military judge abused her discretion when she denied a defense challenge to a member for implied bias where that member’s misunderstanding of about an intoxicated person’s ability to give consent and her inferred burden-of-proof shift from the government to the defense would cause an objective observer, under the totality of the circumstances, to have substantial doubt about the fairness of the court-martial panel; under the facts of this case, the member’s understanding of the law on intoxication and consent was critical, and the military judge never issued a curative instruction despite the member’s strongly held opinion that it was not possible for an intoxicated person to give consent to sexual activity if that person was too drunk to remember having sex and that the government would have to prove otherwise; furthermore, when the member asked for a definition of a “competent” person with regard to a person who could give consent, the military judge instructed her that there was no further definition of “competent” available and advised her to rely on her understanding of the common definition of the word; as such, not only did the military judge fail to instruct the member to disregard her personally held incorrect belief, the response effectively endorsed her erroneous understanding, both as to whether an intoxicated person can give consent and as to which party had the burden of proof on that issue

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

1. 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; under this standard, an appellate court does not expect record dissertations but, rather, a clear signal that the military judge applied the right law; indeed, where the military judge places on the record his analysis and application of the law to the facts, deference is surely warranted; however, an appellate court will afford a military judge less deference if an analysis of the implied bias challenge on the record is not provided; in cases where less deference is accorded, the analysis logically moves more towards a de novo standard of review