In Briggs, which had possibly the worst QP ever, the court set aside the findings and sentence as a result of the judge’s failure to dismiss the wife of the appellant’s flight commander from the panel.
In Hardison, the Court set aside Seaman Hardison’s sentence based on the military judge’s erroneous admission of the Seaman’s pre-service drug use waiver during entrance processing. The Court also said that the government’s argument emphasizing that document and the Seaman’s signed “zero tolerance” statement of understanding was error. The Court found the documents did not meet the “directly related” test in RCM 1001.
In Clay, the Court reversed the findings and sentence based on an implied bias issue. The 3-member Court held that because the military judge failed to make a record concerning implied bias and the liberal grant mandate that the Court erred on the side of finding error, even though the government rehabilitated the member. In this case the statements from the member were still equivocal after rehab. Teaching point: trial counsel, make sure the judge makes a record of implied bias issues and why he did not liberally grant challenges when implied bias arises.
Judges Stucky and Ryan did not participate in these decisions.