United States v. Townsend, __ M.J. ___, No. 07-0229/NA (C.A.A.F. Feb. 5, 2008), isn’t an earth-shattering case. It breaks no new legal ground, but rather applies existing implied bias case law to the facts of this case and upholds allowing the challenged member to sit. But much like United States v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006), Townsend is more interesting for Judge Baker’s separate opinion than for its actual holding.

The implied bias challenge to “LT B,” who was a night law student, was based on his desire to become a prosecutor to “put[] the bad guys in jail” and “keep the streets safe,” his dislike of civilian defense counsel based on watching Law and Order, his father’s law enforcement status, and his “healthy respect for law enforcement, and people in authority.” Id., slip op. at 3-4. But Petty Officer Townsend was represented by a military defense counsel, not a civilian, and LT B affirmed his “belief that Townsend was innocent until proven guilty beyond a reasonable doubt.” Id., slip op. at 4. LT B also assured the court that “he would be able to follow the military judge’s instructions if they differed from information he had learned at school,” and that he “would try to be objective about everything.” Id. LT B also said that he would not automatically believe the testimony of a law enforcement officer. Id. at 5. (Interestingly, though I don’t see this mentioned in the opinion’s analysis, Petty Officer Townsend was a Master-at-Arms.) The defense challenged LT B for cause, the military judge (CAPT Rolph) denied the challenge, and the defense peremptorily challenged a different member.

CAAF initially held that it would accord the military judge’s decision diminished deference because he did not indicate on the record either that he had considered the implied bias issue (as opposed to actual bias) or that he had applied the liberal grant mandate in ruling on the challenge. Id., slip op. at 9-10. The majority also reasoned that because actual service in a law enforcement capacity is not a per se disqualification from serving as a member, merely being related to a law enforcement official cannot be per se disqualifying either. Id., slip op. at 10. The majority similarly reasoned that a lawyer isn’t per se disqualified unless he or she has served in a specific disqualifying role, so an aspiring lawyer is not per se disqualified. Id., slip op. at 11. CAAF concluded that neither any individual matter raised nor all the matters considered cumulatively rose to the level of implied bias.

Judge Baker wrote a separate decision “dubitante” in which he “reluctantly” concurred. Judge Baker’s first sentence makes his position clear: “The liberal grant mandate exists for cases like this.” To Judge Baker, while the military judge did not abuse his discretion by rejecting the challenge, he sure should have granted it.

Judge Baker reviewed many of the individual factors that might have influenced LT B’s outlook and then offered this poetic simile: “As with the trees at Dolly Sods, the wind only blows in one direction.” (I had to look it up: Dolly Sods is an area in West Virginia’s Allegheny Mountains where, according to wikipedia, “strong winds blowing continuously from the west have caused some trees to have branches only on the east side (they are ‘flagged’).”

Judge Baker’s opinion included an aggressive restatement of the reasons for the liberal grant mandate (which, as the majority reminds readers, applies only to challenges lodged by the defense):

First, in a system of panel selection where the convening authority selects the pool of members and the parties only have one peremptory challenge, application of the liberal grant concept helps to address questions that may linger in public perception regarding the appearance of bias in the selection of members.

Second, this court-martial took place at Norfolk Naval Station [the largest Navy base in the world]. There is no indication that there were national security reasons why the potential pool of members was small, perhaps necessitating a “tie goes to the government” approach on implied bias.

Third, appellate review of member challenges is an ungainly, if not impractical, tool to uphold and reinforce the importance of Rule for Courts-Martial (R.C.M.) 912 in military justice practice. Among other things, appellate courts do not have the benefit of hearing the tone of a response or to observe the demeanor of voir dire responses. Further, where matters of appearance and nuance rather than clear error are involved, courts might well be hesitant to reset the clock. And yet, from within the system, it may be particularly hard to discern the extent to which member selection is viewed in public circles as a weak link in the otherwise strong chain of military justice. Hence, trial judges are repeatedly enjoined at the appellate level to consider questions of implied bias and to do so on the record.

As we have previously noted, Judge Baker has authored a large part of CAAF’s recent jurisprudence dealing with member challenges. I suspect that we will soon see portions of his dubitante opinion appearing in opinions for the court.

13 Responses to “Erdmann/Baker on implied bias, or Hello Dolly Sods”

  1. Anonymous says:

    You learn something new everyday…today it was Dolly sods and dubitante. That is actually two things so tomorrow I will place my head on my desk and rest.

  2. Anonymous says:

    This is the kind of analysis that more often than not separates this blog from others as a cut way above.

  3. Rob says:

    Interesting opinion from Baker. As a defense guy, I couldn’t agree more.

    On a side note, has anyone else had trouble accessing CAAF’s web site for the past week or so?

  4. Gene Fidell says:

    Concerning the Court’s website, I would be very surprised if the current prolonged outage does not prompt the Judges to shift to a different arrangement, notwithstanding the Code’s placement of the Court within DoD for administrative purposes. I cannot recall an outage on the D.D.C. ECF system other than for brief weekend maintenance. BZ to CAAFlog for filling the gap by uploading this latest case.

  5. Anonymous says:

    Funny — I see this as an opinion as one I can point to that explains that the liberal grant mandate does not equal a de facto peremptory challenge every time a defense challenge is made (and will use to teach young TCs why they must force an MJ to make an implied bias findings for every denied challenge). That being said, I wonder if the result in this case would have been different if an MJ without Judge Rolph’s well earned reputation for judicial excellence.

  6. John O'Connor says:

    I’ve been mulling over Judge Baker’s concurrence and, on reflection, it troubles me somewhat. Essentially, the opinion says that the MJ didn’t abuse his discretion, but that it was obvious that he should have granted the challenge for cause. I think those are two irreconcilable observations from an appellate court. I don’t think it can be “you didn’t err, but you shopuld have done it the other way.”

    Now, I should note that I am a huge proponent of the notion that a TC should avoid pushing the envelope and creating appellate risk, particularly in cases that are “easy” ones. My feeling on that is that the costs to the system of remands and retials is so high that the TC needs to weigh the need for the evidence (or, in this case, member) in question against the risk that it will bounce the case.

    And I will also concede that mnay MJs, in my view, go into “protect the record” mode and basically gife the defense whatever they want once they are convinced that the case is an easy conviction (I had one MJ where I would always put my best evidence in first because once he figured out I was going to get a conviction, he would exclude basically anything the defense asked him to exclude, even if the evidecne was pretty clearly admissible).

    But when the government rehabilitates a member and opposes a challenge for cause, the MJ is supposed to try to get it right. I don’t think the appropriate response from an appellate court is that you should have struck the member even if there was no basis for doing so, which seems to be what Judge Baker is saying. Basically, I think Judge Baker should have dissented rather than “reluctantly concurred” if he thought that it was an “easy” call to grant the challenge for cause.

  7. John O'Connor says:

    Oh, and re-reading my characteristically typo-ridden post, I should add that one way for Judge baker to get his point across while concurring might have been to stress that this was a really, really close case, sort of firing a shot across the bow without essentially saying that the MJ did the wrong thing but I’m conucrring anyway.

  8. Anonymous says:

    I concur with John O’C. The dubitante opinion here appears more like, and probably should have been, a dissent. If this was an “easy trial level call” on the liberal grant mandate, then how did the judge not abuse his discretion? In my opinion, if the government has to rehabilitate a panel member “several times on ten different subjects,” that member has got to go. Oh, and when you have to explain an analogy (the reference to Dolly Sods) in a follow-on sentence, maybe you shouldn’t use it. I don’t think even the all-time Jeopardy champion would have understood that one.

  9. Anonymous says:

    I think anonymous #6 identified the most interesting part of this opinion; that in some cases, extensive rehabilitation of a court member may result in implied bias. It will be interesting to see just how far away that implied bias “Bridge Too Far” really is.

  10. Anonymous says:

    Caaflog,
    Since the CAAF website has been down for over a week…do you have the ability to link up a summary of the daily journal for the last 10 days?

  11. Anonymous says:

    What is Dolly Sods?

  12. CAAFlog says:

    Sorry, anonymous, but I don’t have access to all of the orders that would be in the daily journal. Scuttlebutt has it that the CAAF web site — along with the Air Force web sites that host the CAAF web site — will be back up on Friday. We’ll see.

    In the meantime, I’ll continue to post any opinions and orders granting review that I can get my hands on on caaflog.com. But I’ll be TDY next week, so if the web site remains down, even this imperfect semi-backup won’t work.

  13. Gene Fidell says:

    I am about to ask the Clerk of the Court to email or fax me any decisions and orders for as long as the website is down. I will then upload them to the NIMJ website, http://www.nimj.org.