Yesterday CAAF granted review in the Army case of United States v. Castillo, No. 14-0457/AR, on the following issue:

Whether, under the totality of the circumstances, the military judge erred in denying the defense implied bias challenge against LTC DS in light of his personal experience as a sexual assault victim, his direct supervisory role over two other members, his ongoing reliance on the trial counsel for military justice advice, the presence of four other members who also received military justice assistance from the trial counsel, and the fact that the panel was selected exclusively from appellant’s brigade.

The Army CCA heard oral argument in this case on January 22, 2014, (as mentioned in this TWIMJ post) but I can’t find an opinion on the CCA’s website.

This is the third member bias issue granted by CAAF in the past six weeks. The others are United States v. Peters, No. 14-0289/AR (mentioned here), which was granted on June 3, and United States v. McFadden, No. 12-0501/AF (last mentioned here), which was granted on April 24.

CAAF’s last significant member bias opinion was in the certified Marine Corps case of United States v. Nash, 71 M.J. 83 (C.A.A.F. 2012) (CAAFlog case page). In that case the NMCCA set aside the findings after concluding that a member’s question to a witness indicated implied bias. The Navy JAG certified the case to CAAF, questioning whether the CCA conducted the proper analysis. CAAF agreed that the CCA got it wrong, finding actual bias where the CCA found only implied bias. CAAF then affirmed the CCA’s action that set aside the findings.

In my opinion analysis of Nash I commented:

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.

Perhaps that time has come.

8 Responses to “CAAF grants third member bias issue in six weeks”

  1. stewie says:

    I dont understand the government here…were I the government in this case, I would have joined the challenge when he said “I’m a sexual assault victim.” Why even risk the over-turn? I don’t know how such a panel member survived. Were I a MJ, no way I keep this guy on over a defense challenge for cause. I get that there is not much that is technically per se, but being a sexual assault victim in a sexual assault case pretty much qualifies.

  2. DCGoneGalt says:

    I concur, Stewie.  Why fight this one if you are the Government?  The implied bias is staring you in the face?  Not sure how the adult in the courtroom (the MJ) found this not to be implied bias?

  3. stewie says:

    Implied? Heck, it’s more or less actual in my mind. I mean I get it, the panel member likely said “I can put it out of mind” so it’s technically implied, but in no way do I believe him to be honest (not that he’s lying openly just that he likely believes what he is saying, but is wrong/ignorant of his own bias). He’d have to be a rare bird indeed.  There’s other panel members out there.

  4. Tacitus says:

    Its interesting CAAF not only granted but ordered briefs in both Castillo and Peters.  Both cases involve an ongoing professional relationship with the trial counsel and both make cumulative error arguments based on implied bias.  I wonder where the Court is going with this.  Perhaps having a member’s primary military justice advisor as the trial counsel, in combination with other grounds for challenge, is cause for reversal. 

  5. Phil Cave says:

    Tacitus, it should be in the right circumstance.  I’ve certainly had MJ’s remove a member because the TC is his “lawyer.”  It does require the voir dire lay out some facts.  You do have to show more than the relationship.  You have to show how and why the relationship will affect the members view of the case.    Most members will usually agree that they trust the TC, believe the TC, always follow the recommendations of the TC.  With a few other questions it’s not hard to then argue the implied bias.  Couple that with the possibility the TC is going to make mistakes during argument – vouching for witnesses, vouching for the case, etc., etc., etc., as we have seen in some other cases and you should be there with a valid implied bias challenge.  Rosales-Lopez is a case related to a judge limiting voir dire as a bar to effective challenge decisions, but it’s also good for the proposition that if the voir dire doesn’t develop facts, then there’s no error.
    I will interested to see if the court discusses United States v. Torres, 128 F.3d 38, in some way,  as well as cases such as United States v. Minyard, 46 M.J. 229

  6. Mike says:

    It just isn’t worth the risk of busting on appeal and having to relitigate the case in 3 years. TCs need to learn to pick their battles better in these situations. I remember prosecuting a slam dunk case in which the CDC was a walking talking IAC claim. I simply stopped objecting to all the improper things he was doing to make him look less bad. The case survived appeal somehow. Not sure if my silence did it but I am sure it helped

  7. Charlie Gittins says:

    Wow.  What a tone deaf military judge.  I am with Phil ….  those questions about trusting the TC as his advisor, belives the TC is a man of good character, gives the straight scoop, can be believed in his advice, is extremely competent tc, usually ends up in a sayanora to the member.  The judge must have been worried about busting quorum or some other irrelevant factor. as is usually in the case of these bone headed rulings.

  8. Christian Deichert says:

    I’d’ve joined the challenge as well.  Where was the liberal grant madate on this one?  Hard to believe that this would survive the test.