U.S. v. Keago, 84 M.J. 367

First Principles: Constitutional Matters: Due Process

1. as a matter of due process, an accused has a constitutional right, as well as a regulatory right, to a fair and impartial panel

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. military judges must err on the side of granting defense challenges for cause; this liberal grant mandate recognizes that the interests of justice are best served by addressing potential member issues at the outset of judicial proceedings, and is intended to address 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; under the liberal grant mandate, if the military judge finds an implied bias challenge to be a close question, the challenge should be granted
2. there is no basis for application of the liberal grant mandate to a government's challenge for cause
3. while it is not required for a military judge to place his or her implied bias analysis with respect to challenges for cause on the record, doing so is highly favored and warrants increased deference from appellate courts; when a military judge fails to conduct an implied bias analysis, the standard of review shifts toward de novo
4. there is a sliding standard of appellate review for implied bias challenges that falls somewhere on a spectrum between de novo and abuse of discretion based on the specific facts of the case; a military judge who cites the correct law and explains his implied bias reasoning on the record will receive greater deference (closer to the abuse of discretion standard), while a military judge who fails to do so will receive less deference (closer to the de novo standard); accordingly, the more reasoning military judges provide, the more deference they will receive
5. in close cases with respect to challenges for cause, military judges are enjoined to liberally grant challenges for cause; in fact, military judges are mandated to err on the side of granting a challenge, and this means that if after weighing the arguments for the implied bias challenge the military judge finds it a close question, the challenge should be granted; military judges retain their discretion to determine whether a challenge for cause constitutes a close case of bias; however, when a case is close, the liberal grant mandate prohibits military judges from denying the challenge
6. in this case, with respect to each challenged member for actual bias, the military judge correctly cited the relevant actual bias law, made express findings of fact that were not clearly erroneous, recognized the liberal grant mandate, and placed his reasoning on the record; considering the great deference due to military judges with respect to their actual bias determinations, the military judge did not abuse his discretion when he denied appellant's challenges for actual bias
7. in this case, the military judge provided no explanations for his denial of appellant's two implied bias challenges for cause; under a less deferential standard of review, the two challenged members presented a close case of implied bias where (1) the first member appeared to believe that the government had established some portion of its case against appellant simply by bringing the charges to a courts-martial and where he appeared to be confused about appellant's presumption of innocence and right to remain silent, and (2) the second member suggested that she did not believe that mistake of fact was a viable defense to the charged sexual assault offense; because military judges are required to apply the liberal grant mandate and excuse members in close cases, the military judge erred by failing to do so

Military Justice Personnel: Military Judge: Discretion

1. in this case, with respect to each challenged member for actual bias, the military judge correctly cited the relevant actual bias law, made express findings of fact that were not clearly erroneous, recognized the liberal grant mandate, and placed his reasoning on the record; considering the great deference due to military judges with respect to their actual bias determinations, the military judge did not abuse his discretion when he denied appellant's challenges for actual bias

Military Justice Personnel: Court Members: Challenges for Cause

1. RCM 912(f)(1) authorizes specific grounds for excusing panel members for cause; as relevant in this case, RCM 912(f)(1)(N) provides that a servicemember should not sit as a member in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality; this language encompasses the two types of bias: actual and implied
2. actual bias is known as bias in fact; it is the existence of a state of mind that leads to an inference that the person will not act with entire impartiality; the test for actual bias is whether a member's personal bias will yield to the military judge's instructions and the evidence presented at trial; an actual bias challenge is evaluated based on the totality of the circumstances; and because a challenge based on actual bias involves judgments regarding credibility, and because the military judge has an opportunity to observe the demeanor of court members and assess their credibility during voir dire, a military judge's ruling on actual bias is afforded great deference
3. implied bias is bias attributable in law to the prospective juror regardless of actual partiality; the test for implied bias 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; in asking that question, courts consider the totality of the circumstances, and assume the public is familiar with the unique structure of the military justice system
4. military judges must err on the side of granting defense challenges for cause; this liberal grant mandate recognizes that the interests of justice are best served by addressing potential member issues at the outset of judicial proceedings, and is intended to address 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; under the liberal grant mandate, if the military judge finds an implied bias challenge to be a close question, the challenge should be granted
5. there is no basis for application of the liberal grant mandate to a government's challenge for cause
6. in this case, with respect to each challenged member for actual bias, the military judge correctly cited the relevant actual bias law, made express findings of fact that were not clearly erroneous, recognized the liberal grant mandate, and placed his reasoning on the record; considering the great deference due to military judges with respect to their actual bias determinations, the military judge did not abuse his discretion when he denied appellant's challenges for actual bias
7. while it is not required for a military judge to place his or her implied bias analysis with respect to challenges for cause on the record, doing so is highly favored and warrants increased deference from appellate courts; when a military judge fails to conduct an implied bias analysis, the standard of review shifts toward de novo
8. there is a sliding standard of appellate review for implied bias challenges that falls somewhere on a spectrum between de novo and abuse of discretion based on the specific facts of the case; a military judge who cites the correct law and explains his implied bias reasoning on the record will receive greater deference (closer to the abuse of discretion standard), while a military judge who fails to do so will receive less deference (closer to the de novo standard); accordingly, the more reasoning military judges provide, the more deference they will receive
9. in close cases with respect to challenges for cause, military judges are enjoined to liberally grant challenges for cause; in fact, military judges are mandated to err on the side of granting a challenge, and this means that if after weighing the arguments for the implied bias challenge the military judge finds it a close question, the challenge should be granted; military judges retain their discretion to determine whether a challenge for cause constitutes a close case of bias; however, when a case is close, the liberal grant mandate prohibits military judges from denying the challenge
10. a potential panel member's predictable answers to leading questions are not enough to rebut the possibility of bias, especially when some of those questions lead to more problematic responses
11. in this case, the military judge provided no explanations for his denial of appellant's two implied bias challenges for cause; under a less deferential standard of review, the two challenged members presented a close case of implied bias where (1) the first member appeared to believe that the government had established some portion of its case against appellant simply by bringing the charges to a courts-martial and where he appeared to be confused about appellant's presumption of innocence and right to remain silent, and (2) the second member suggested that she did not believe that mistake of fact was a viable defense to the charged sexual assault offense; because military judges are required to apply the liberal grant mandate and excuse members in close cases, the military judge erred by failing to do so

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

1. an appellate court reviews a military judge's actual bias determinations for an abuse of discretion
2. because the test for implied bias is an objective one that is only partially based on the military judge's credibility determinations and findings of fact, military appellate courts review implied bias challenges pursuant to a standard that is less deferential than abuse of discretion, but more deferential than de novo review
3. while it is not required for a military judge to place his or her implied bias analysis with respect to challenges for cause on the record, doing so is highly favored and warrants increased deference from appellate courts; when a military judge fails to conduct an implied bias analysis, the standard of review shifts toward de novo
4. there is a sliding standard of appellate review for implied bias challenges that falls somewhere on a spectrum between de novo and abuse of discretion based on the specific facts of the case; a military judge who cites the correct law and explains his implied bias reasoning on the record will receive greater deference (closer to the abuse of discretion standard), while a military judge who fails to do so will receive less deference (closer to the de novo standard); accordingly, the more reasoning military judges provide, the more deference they will receive