So finds the Air Force CCA in United States v. McFadden, No. 37438 (A.F.Ct.Crim.App. Sep. 26, 2013) (per curiam) (slip op. here). Airman McFadden testified in her own defense to the charge of desertion after pleading guilty to the lesser included offense of unauthorized absence. The issue for the members was whether she had the intent to remain away permanently amounting to desertion under Article 85, UCMJ. In Appellant’s testimony:

She denied that she ever formed the intent to remain away permanently during either of the charged absences. After the prosecution cross-examined her, the military judge asked the appellant if, after she was apprehended, she ever told two of the investigators assigned to her case that she was intending to come back. Her response was that they never asked her. Following up on the judge’s questions, the trial counsel asked her if a third investigator had inquired if she intended to return to base. After the trial defense counsel’s objection to the question as being “beyond the scope” was overruled, the appellant answered that she was asked such a question “but I used my right to remain silent at the time.” On re-direct examination she once again denied that she intended to remain away permanently.

After trial defense counsel’s re-direct examination, the court members asked the appellant questions. One exchange occurred as follows:

Q: . . . You testified today on numerous accounts of overt deception, and to me you seem to have a heightened intuition of other people’s motives. For example, you were aware that perhaps Airman [D] might tell people X, Y, Z, so you told her certain things. Have you also heard of lying by omission – so – exercising your right to remain silent. So, how is your testimony today regarding never intending to desert the Air Force permanently different from your previous pattern of deception?

A: Because, before, I had never formed the intent to remain away permanently. And I’ve already admitted to going AWOL, which I take responsibility for, but I don’t want people to think that my intent was to never come back.

McFadden, slip op. at 2-3 (emphasis added). Later, the defense requested a mistrial but the defense did not voir dire or challenge the member. The military judge denied the request for a mistrial and gave an instruction to the panel.

After the AFCCA’s initial review of this case (where Appellant did not raise the issue of this member’s question) CAAF remanded the case to the AFCCA to consider this exchange in light of United States v. Nash, 71 M.J. 83 (C.A.A.F. 2012) (CAAFlog case page). Nash was a Marine Corps case where a member was challenged after he asked a question that indicated bias. He wasn’t removed and the appellant was convicted, but the NMCCA found implied bias and set aside the findings. The Navy JAG certified the case to CAAF challenging the CCA’s finding of implied bias, but CAAF found actual bias and affirmed the CCA’s decision setting aside the findings.

The AFCCA distinguishes McFadden from Nash on three bases:

First, the court member in Nash was specifically challenged for cause and the defense asked that the individual be removed from the panel. In the present case, the court member was not specifically challenged or otherwise asked to be removed; rather, the defense requested a mistrial.

Second, in Nash, the possible bias was addressed on the record, enabling the reviewing courts to apply the appropriate tests. For example, the record allowed the CAAF to determine that the individual voir dire did nothing to dispel the bias because the military judge had asked leading questions which elicited “predictable” and “problematic” answers. Here, because the court member was never challenged, we do not have a similarly developed record.

Third, in Nash, the court member’s bias went to the ultimate issue of guilt, in that it appeared to presume guilt in contravention of the military judge’s instructions to keep an open mind. Here, the potential bias went to the accused’s credibility.

McFadden, slip op. at 5 (citations omitted) (paragraphing added). The first two differences are the decisive factors:

Since the trial defense counsel in this case did not make a motion to excuse the court member who asked the suspect question, we must determine whether the military judge abused his discretion by not removing the court member sua sponte.

Id. Because the underlying issue was one of credibility and not the ultimate question of guilt (unlike Nash), the CCA finds no error in the military judge’s decision to give an instruction (that the members are presumed to have followed), and affirms.

2 Responses to “Remaining silent isn’t a “lie of omission,” but it’s ok if a member thinks it is”

  1. SgtDad says:

    The SNCO in me doesn’t buy her story for a nanosecond.  But, …
    The lawyer in me thinks that member does not grasp one of the fundamental principles of the constitution he or she is sworn to defend against all enemies, foreign and domestic.  Merely asking the question speaks volumes about the member’s ignorance, bias, and judgment. And the willingness of the military judge to tolerate the encroachment suggests he or she doesn’t get it, either.
    Just my 2¢.

  2. some TC says:

    I am a little bemused that the question was allowed in the first place, especially in the form it’s in (although I don’t know if any rewording of the basic premise would save it).