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.