U.S. v. Dockery, 76 M.J. 91

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. on a challenge for cause, although it is not required for a military judge to place his or her implied bias analysis on the record, doing so is highly favored and warrants increased deference from appellate courts; although record dissertations from the military judge’s decision on implied bias are not expected, there should be a clear signal that the military judge applied the right law; however, a mere incantation of the legal test for implied bias without analysis is rarely sufficient in a close case

Military Justice Personnel: Court Members: Challenges for Cause

1. Batson v. Kentucky (476 US 79 (1986)) is not applied to challenges for cause
2. RCM 912(f)(1)(N) provides that a court-martial member shall be excused for cause whenever it appears that the member should not sit as member in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality; RCM 912(f)(1)(N) applies to both implied and actual bias
3. implied bias challenges stem from the historic concerns about the real and perceived potential for command influence in courts-martial; implied bias exists when most people in the same position as the court member would be prejudiced; it is evaluated objectively under the totality of the circumstances and through the eyes of the public, reviewing the perception or appearance of fairness of the military justice system; 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
4. a court member simply making a reference to race does not create either the reality or appearance of racial bias, and the military judge erred when he excused that member on the basis of implied bias
5. in a typical case involving actual bias, an appellant appeals the denial of a challenge for cause and argues the challenged member’s participation on the court resulted in material prejudice; when implied bias is the basis for an appeal of a denied challenge, the appellant similarly argues that the challenged member should have been removed; however, instead of arguing prejudice, the appellant asserts that, because the member remained on the court, a reasonable member of the public would question the fairness of the court-martial
6. a military judge’s error in improperly excusing a court member for implied bias was not materially prejudicial and did not entitle appellant to any relief, where appellant neither alleged that any of the court members who ultimately tried him were biased nor suggested that their presence on the court created a substantial doubt as to the court’s legality, fairness, or impartiality

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; an abuse of discretion has occurred if the military judge’s findings of fact are clearly erroneous or if the decision is influenced by an erroneous view of the law
2. a military judge’s ruling on a challenge for cause is given great deference; although it is not required for a military judge to place his or her implied bias analysis on the record, doing so is highly favored and warrants increased deference from appellate courts; although record dissertations from the military judge’s decision on implied bias are not expected, there should be a clear signal that the military judge applied the right law; however, a mere incantation of the legal test for implied bias without analysis is rarely sufficient in a close case; in cases where less deference is accorded, the analysis logically moves more towards a de novo standard of review
3. if a military judge does not put any analysis on the record in granting a challenge of a court member for implied bias, an appellate court need not afford his ruling much deference
4. whether a lower court utilized the appropriate standard to test for prejudice is a question of law reviewed de novo
5. where a military judge erroneously granted the government’s actual bias challenge on the basis of implied bias, and the error is nonconstitutional, the error is subject to harmless error analysis, and appellant is entitled to relief only if he or she can demonstrate prejudice