By a 3-2 vote, CAAF affirmed NMCCA’s opinion in Bagstad.  CAAF’s decision is here.  Judge Stucky wrote for the majority.  Judge Baker, joined by Judge Erdmann, dissented.  More later.

4 Responses to “CAAF affirms in Bagstad”

  1. Socrates says:

    Not too much passion or force in either the decision or the dissent. This case seems to present a Rorschach test on the appearance of “fairness” of a panel, rather than offer complex legal analysis regarding its composition. (Not a criticism.)

  2. Anonymous says:

    makes me wonder about implied bias. Looks to me like with the 3 that ruled here, if you don’t have actual bias, you better have a REALLY strong case of implied bias.

    I’d think having 2/3 be a rater-ratee is exactly the kind of implied bias that looks kinda bad. The interesting part was the majorities focus on timing. In effect, they are saying that the defense counsel was required to make the same objection a second time after the peremptory challenge, which makes me wonder if this case is different if they somehow either did make a second objection or if they simply held their objection until after the peremptory and then challenged the final composition.

    Or is the court saying the peremptory challenge basically means they are responsible for setting up the 2/3 situation so no love because it is “their fault?”

  3. jerk says:

    it does read like stating an implied bias challenge once the panel got to three members would have gotten Bagstad to three CAAF votes. IAC?

  4. Gene Fidell says:

    [Full disclosure: my name is one of those on NIMJ’s amicus brief.] How can it be so clear that a knowledgeable observer would have no heartburn over the composition of this court-martial if the judges were split 3-2? Cf. Scott v. Harris, 550 U.S. 372, ___ (2007) (8-1) (car chase) (Stevens, J., dissenting) (“If two groups of judges can disagree so vehemently about the nature of the pursuit and the circumstances surrounding that pursuit, it seems eminently likely that a reasonable juror could disagree with this Court’s characterization of events”).