On Friday, the Judge Advocate General of the Navy certified the following issues to CAAF:
WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED IN REVIEWING THE IMPLIED BIAS ISSUE DE NOVO, RATHER THAN REVIEWING THE IMPLIED BIAS ISSUE UNDER THE STANDARD OF “LESS DEFERENCE THAN ABUSE OF DISCRETION, BUT MORE DEFERENCE THAN DE NOVO” AS SET FORTH IN U.S. v. BAGSTAD, 68 M.J. 460 (C.A.A.F. 2010)?
WHETHER THE LOWER COURT FAILED TO APPLY THE IMPLIED BIAS TEST THAT ASKS WHETHER, CONSIDERED OBJECTIVELY, “MOST PEOPLE IN THE SAME POSITION WOULD BE PREJUDICED,” REITERATED IN 2010 IN BAGSTAD, AND INSTEAD ERRONEOUSLY APPLIED A TEST ASKING WHETHER THE MEMBER’S CIRCUMSTANCES “DO INJURY TO THE PERCEPTION OR APPEARANCE OF FAIRNESS IN THE MILITARY JUSTICE SYSTEM”?
WHETHER THE LOWER COURT ERRED IN REVERSING THE MILITARY JUDGE AND SETTING ASIDE THE FINDINGS AND SENTENCE FOR IMPLIED BIAS WHERE THE MEMBER SUBMITTED A WRITTEN REQUEST, WHICH WAS DENIED, THAT THE MILITARY JUDGE ASK A WITNESS “DO YOU THINK THAT PEDOPHILES CAN BE REHABILITATED?
United States v. Nash, __ M.J. __, No. 11-5005/MC (C.A.A.F. Sept. 16, 2011). NMCCA’s unpublished decision in the case is available here. United States v. Nash, No. NMCCA 201000220 (N-M. Ct. Crim. App. June 28, 2011).