In United States v. Bryant, __ M.J. ___, No. ACM 36515 (A.F. Ct. Crim. App. Aug. 16, 2007), the Air Force Court set aside the findings and sentence, ruling that the military judge abused his discretion in denying a challenge for cause. Senior Judge Francis wrote for a unanimous panel that also included Judges Soybel and Brand.
The case involved a defense challenge for cause against Col C, who was the Individual Mobilization Augmentee to the special court-martial convening authority. The Air Force Court emphasized that while this case was tried by a general court-martial, the SPCMCA had played a particularly active (and completely proper) role in its pretrial processing. Col C had had no prior dealings with Bryant’s case and was unaware of any details about it. But Col C “described himself as ‘part of the [SPCMCA’s] command section,’ who was generally ‘used in [a] capacity almost like a second vice commander,’ and would ‘substitute in meetings for either the commander or the vice commander.’ He also, at times, served as the wing commander when the[SPCMCA] was away, albeit for a total of only about a week over a two-year period.” Id., slip op. at 2.
The defense challenged Col C based on actual and implied bias. The military judge denied the challenge, providing what the Air Force Court characterized as “only minimal explanation of his decision and no analysis at all with regard to the issue of implied bias.” Id., slip op. at 3.
But that was only the first stroke of this judicial spanking. The Air Force Court ruled:
Applying the abuse of discretion standard, the absence of any rationale or reference to the legal standard applied forces us to conclude the military judge abused his discretion when he denied the challenge for cause against Col C. Whether viewed as a “second vice commander” or just the wing commander’s IMA, he is likely to be perceived by most members of the Air Force and the public as the alter ego of the commander he serves. Indeed, Col C indicated that he himself on occasion served in the commander’s stead when he was away and substituted in meetings for the commander. Because that commander is, in this case, the same SPCMCA who played a substantial role in the court-martial process of this appellant, Col C’s position as a prospective court-member raised an appearance of unfairness. Accordingly, absent a rational and factually supportable finding by the military judge that the appearance of unfairness was overcome by other factors, the challenge for cause should have been granted.
Id., slip op. at 4.
But as suggested by an astute footnote, id., slip op. at 3 n.2, had the case been tried six months later, the result would have been different. When its challenge for cause against Col C was denied, the defense exercised its peremptory challenge against him. Under the abominable 2005 changes to R.C.M. 912(f)(4), that use of the peremptory challenge would have waived the issue on appeal. As we previously discussed here and here, that change is an affront to justice. And this case demonstrates why. The Air Force Court’s opinion indicates that two other members were unsuccessfully challenged for cause. Id., slip op. at 3 n.1. The defense counsel plausible announced that had the challenge for cause against Col C been granted, the defense would have peremptorily challenged another member — probably one of the two members the defense unsuccessfully challenged for cause. See id., slip op. at 3. So in the post-abominable-R.C.M.-912(f)(4)-amendment world, the military judge could erroneously deny a challenge for cause, thereby depriving the defense of the use of its sole peremptory challenge that it would have used against another member about whom the defense had demonstrable qualms, and R.C.M. 912(f)(4) would deny relief.
Defense counsel have got to challenge this abominable rule hammer and tong. Note that the Kabul Klipper previously suggested Article 41(b)(1), which says the accused is “entitled” to one peremptory challenge, as a basis for doing so. Has anyone seen such a challenge litigated in a post-13 November 2005 case?