CAAF released its 20th opinion of the term on Friday, April 13th, ruling against the government in the certified case of United States v. Nash, No. 11-5005/MC, 71 M.J. 83 (C.A.A.F. Apr. 13, 2012) (CAAFlog case page) (link to slip op.). The case involves a Marine Staff Sergeant who was convicted in November, 2009, contrary to his pleas and by a panel including enlisted members, of various sexual offenses involving children. In June, 2011, the NMCCA set-aside the findings and sentence and authorized a rehearing, finding that the trial military judge erred by failing to dismiss an enlisted member who, during the defense case on the merits, submitted the following question to the appellee’s wife: “Do you think a pedophile can be rehabilitated?” The NMCCA agreed with the trial military judge that the member was not actually biased, but the court found implied bias, ruling:

While we cannot state with any certainty what MGySgt S actually thought of the state of the evidence, it is clear to this court from the call of his question to the appellant’s wife that he had already reached the conclusion that the appellant was guilty. … We conclude that when MGySgt S’s question to Mari Nash is “viewed through the eyes of the public, focusing on the appearance of fairness,” the record reveals that MGySgt S had not maintained an open mind, but rather had prematurely and unfairly determined that the appellant was a pedophile, ergo, in some sense, guilty, prior to being instructed on the law by the military judge, and before deliberations had commenced.

The Navy JAG then certified the case to CAAF, identifying three issues:

I. 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).

II. 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?”

III. Whether the lower court erred in reversing the military judge setting aside the findings and sentence for implied bias where the member submitted a written request, which was denied, that the military judge ask  witness “do you think that pedophiles can be rehabilitated?”

CAAF’s opinion is authored by the Chief Judge, is unanimous, and is short, with less than five pages of discussion. The court disagrees with the NMCCA, and concludes that the trial military judge’s failure to excuse the member for actual bias constituted an abuse of discretion. The court’s decision moots certified issues I and II, involving application of the test for implied bias.

The discussion begins by defining actual bias as “personal bias which will not yield to the military judge’s instructions and the evidence presented at trial.” Nash, slip op. at 13 (citing United States v. Reynolds, 23 M.J. 292, 294 (C.M.A. 1987)). The court’s conclusion is based on two points: (1) That R.C.M. 912(f)(1)(M) “provide[s] that military judges must remove any member who has formed or expressed a definite opinion as to the guilt or innocence of the accused as to any offense charged” (Slip op. at 14), and (2) that the “requirement for an impartial panel provides that all members follow the military judge’s jury instructions” (Slip op. at 16). On the first point, the court finds that the member’s question suggests that he believed that “Appellee was a pedophile that committed the crimes he was charged with and that he might have believed pedophiles cannot be rehabilitated, and did so before the close of evidence.” Slip op. at 14. On the second point, the court finds that the member’s “question demonstrated that he had not kept an open mind until the close of evidence and was therefore unable to follow the military judge’s instructions [that he do so].” Slip op. at 16. The court then affirms the NMCCA’s opinion authorizing a rehearing.

During the oral argument in this case (which we did not cover), there was a fair amount of discussion of the need to simplify the tests for member bias. Perhaps the court’s simple resolution of this case signals a preference for a liberal application of the test for actual bias (a, uh, “liberal grant”). But more substantive changes in the law will have to wait for a more complicated case.

Case Links:
NMCCA’s opinion
Appellant’s (government) brief
Appellee’s brief
Appellant’s (government) reply brief
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

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