CAAF decided the Army cases of United States v. Peters, 74 M.J. 31, No. 14-0289/AR (CAAFlog case page) (link to slip op.), and United States v. Castillo, 74 M.J. 39, No. 14-0457/AR (CAAFlog case page) (link to slip op.), on Thursday, February 12, 2015. Both cases presented issues questioning whether the military judges erred in denying defense challenges of members for cause based on implied bias. CAAF finds error in Peters and reverses the convictions and the decision of the Army CCA, but the court finds no error in Castillo and affirms the convictions and the CCA.
Chief Judge Baker writes for the court in both cases. Judges Stucky and Ryan both write separately; both dissent from the finding of error in Peters, and both concur with the result in Castillo.
A military judge’s ruling on a challenge for cause is reviewed for an abuse of discretion. Military judges are afforded a high degree of deference on rulings involving actual bias. This reflects, among other things, the importance of demeanor in evaluating the credibility of a member’s answers during voir dire. By contrast, issues of implied bias are reviewed under a standard less deferential than abuse of discretion but more deferential than de novo. Observation of the member’s demeanor may inform judgments about implied bias; however, implied bias is reviewed under an objective standard, viewed through the eyes of the public.As this Court has often stated, at its core, implied bias addresses the perception or appearance of fairness of the military justice system.
United States v. Downing, 56 M.J. 419, 422 (C.A.A.F. 2002) (marks and citations omitted) (emphasis added). It is the application of this special deference that splits CAAF in Peters, and is at the heart of the court’s strained unanimity in Castillo.
United States v. Peters, No. 14-0289/AR (CAAFlog case page): Oral argument audio.
United States v. Castillo, No. 14-0457/AR (CAAFlog case page): Oral argument audio.
Whether the military judge erred in denying the implied bias challenge against LTC JC, in light of LTC JC’s professional relationship with trial counsel, the special court-martial convening authority, and the investigating officer.
Appellant was convicted contrary to his plea of not guilty, by a general court-martial composed of members with enlisted representation, of causing injury by the drunken operation of a vehicle, involuntary manslaughter, and aggravated assault, in violation of Articles 111, 119, and 128. Appellant also pleaded guilty to drunken operation of a vehicle in violation of Article 111. The members sentenced Appellant to confinement for ten years, reduction to E-1, total forfeitures, and a bad-conduct discharge. The convening authority reduced the confinement portion of the sentence to nine years and six months.
One of the members who sat as part of Appellant’s court-martial was Lieutenant Colonel (LTC) JC. He was a battalion commander who had ongoing professional relationships with the trial counsel, the special court-martial convening authority, and the Article 32 investigating officer. App. Br. at 2-3. The trial counsel was LTC JC’s brigade judge advocate, providing training and advice on operational law and military justice issues. App. Br. at 3. The special court-martial convening authority (who had forwarded Appellant’s case recommending trial) was LTC JC’s immediate superior. App. Br. at 4. The Article 32 investigating officer was LTC JC’s executive officer. App. Br. at 4.
Based on these facts, Appellant’s counsel made a challenge for cause against LTC JC, asserting bias in the fact that LTC JC “was ‘clearly too connected and too related to this case.'” App. Br. at 5. Appellant’s counsel also noted “LTC JC’s ten-second-hesitation in responding to the question, ‘[d]id you form any opinions, or have you formed any opinions, before coming to this court about who is at fault for that accident?’ This hesitation, the defense argued, was evidence that LTC JC struggled with the distinction between being a commander and being a panel member.” App. Br. at 5 (citation to record omitted). But the military judge denied the challenge and LTC JC sat as a member of the panel.
Appellant raised this challenge again on appeal but the Army CCA affirmed. CAAF then granted review.
This case returns CAAF to the issue of implied bias in a service member selected as part of a court-martial. “Implied bias exists when, regardless of an individual member’s disclaimer of bias, most people in the same position would be prejudiced.” United States v. Bagstad, 68 M.J. 460, 462 (C.A.A.F. 2010) (citations and marks omitted). The test for implied bias “is objective, viewed through the eyes of the public, focusing on the appearance of fairness.” Id.
Two years ago, in the certified case of United States v. Nash, 71 M.J. 83 (C.A.A.F. 2012) (CAAFlog case page), CAAF was asked to look at an application of this test after the NMCCA found implied bias and reversed the convictions in a child sexual assault case. CAAF largely avoided that issue by finding actual bias, which is “personal bias which will not yield to the military judge’s instructions and the evidence presented at trial.” Nash, 71 M.J. at 88. But the court explained that “actual bias and implied bias are ‘separate legal tests, not separate grounds for a challenge,'” Id. (quoting United States v. Armstrong, 54 M.J. 51, 53 (C.A.A.F.2000)).