CAAF will hear oral argument in the Air Force case of United States v. McFadden, No. 12-0501/AF (CAAFlog case page), on Tuesday, October 7, 2014, at 9:30 a.m. The case presents two issues related to a member’s questions to Appellant when Appellant testified in her own defense:

I. Whether the Air Force Court of Criminal Appeals (AFCCA) erred when it held that the military judge did not abuse his discretion by failing to excuse for cause a court member who accused the appellant of lying by omission by exercising her Article 31(b), UCMJ right to remain silent.

II. Whether the military judge abused his discretion by denying defense counsel’s request for a mistrial after a court member accused Appellant of lying by omission by exercising her Article 31(b), UCMJ, right to remain silent.

Appellant was tried in 2009 by a general court-martial composed of officer members. App. Br. at 1. She pleaded guilty to one specification of unauthorized absence in violation of Article 86. Id. She pleaded not guilty to one specification each of conspiracy to commit desertion, desertion, and making a false official statement, in violation of Articles 81, 86, and 107. Id. She was convicted of all of these offenses and sentenced to confinement for 24 months, total forfeitures, reduction to E-1, a fine of $1,650, and a bad-conduct discharge (the convening authority disapproved a 36-day term of contingent confinement). Id.

A central issue during the trial of this case was whether Appellant ever formed the intent to remain away permanently that is required for a conviction of desertion. Appellant gave a pretrial statement to law enforcement in which she refused to answer questions about where she planned to go after absenting herself and whether she planned to turn herself in to military authorities. These questions were redacted from a written version of her pretrial statement that was admitted into evidence. Appellant then took the stand to testify in her own defense during the findings phase of her trial, and she asserted that she never formed the intent to remain away permanently. The military judge questioned Appellant and asked her if she ever told the investigators that she intended to return, to which Appellant responded, “I don’t believe they ever asked.” Gov’t Br. at 7. After this exchange, on re-cross-examination, the trial counsel asked whether a specific person asked Appellant if she intended to return. The Defense objected to this question as “beyond the scope,” but the military judge permitted the question and Appellant answered that she “used [her] right to remain silent at the time.” Gov’t Br. at 8.

Then the members asked Appellant questions (seven members asked questions, though the total number of members is unclear from the briefs). Gov’t Br. at 17 n.8. One of these questions was:

Q. My next question is: 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 Dover might tell people X, Y, and 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.

Gov’t Br. at 9 (emphasis added). The Defense did not object or challenge this member. But the Defense did move for a mistrial “based on the military judge’s, trial counsel’s, and [the member]’s questions to Appellant.” App. Br. at 6.

The motion for a mistrial was denied. Instead, the military judge instructed the panel that Appellant’s invocation of her right to remain silent was not lying by omission. The AFCCA considered the denial of the mistrial motion and affirmed, but CAAF remanded the case to the CCA with an order to consider the case in light of CAAF’s opinion in United States v. Nash, 71 M.J. 83 (C.A.A.F. Apr. 13, 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 Nash 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.

After CAAF decided Nash and remanded this case, the CCA considered the bias issue and affirmed, distinguishing the facts of this case from the facts of Nash. CAAF then granted review.

Appellant’s brief tries to connect the facts of this case to the facts of Nash:

Like Nash, the military judge asked the panel members, to include Maj Cereste [the member who asked the question at issue], whether they would be able to keep an open mind and instructed them not to make any determination of guilt before all of the evidence had been presented. And like the panel member in Nash, Maj Cereste’s question demonstrated that she had not kept an open mind until the close of evidence and was therefore unable to follow the military judge’s instructions. See Nash, 71 M.J. at 89. This demonstrates that Maj Cereste’s bias could not yield to the military judge’s initial instructions. AFFCA erred in finding that the curative instruction was an appropriate remedy because they ignored the evidence before them that showed Maj Cereste already chose not to follow the military judge’s instructions.

App. Br. at 9-10. Appellant also asserts that the member’s question about lying by omission “expressed a definite opinion as to the guilt of the Appellant. This went squarely towards her bias – not her credibility.” App. Br. at 11. But the Government asserts the opposite:

Maj Cereste’s questions were aimed squarely at determining the credibility and sincerity of Appellant, rather than an expression of a preformed opinion regarding her guilt or innocence. While the final question may have made reference to Appellant’s “right to remain silent,” the most important part of her question was the question itself: “So, how is your testimony today regarding never intending to desert the Air Force permanently different from your previous pattern of deception?” (J.A. at 72.) That question, unlike the question asked in Nash, provided Appellant the legitimate opportunity to explain why she was not guilty.

Gov’t Br. at 16-17. The Government also emphasizes the lack of a Defense challenge or request for voir dire, asserting that “Appellant has failed to meet his burden on appeal of establishing that factual grounds for challenge existed against Maj Cereste.” Gov’t Br. at 13.

Unfortunately, neither brief gives much consideration to the specific legal tests for bias. “Actual bias and implied bias are ‘separate legal tests, not separate grounds for a challenge.’” Nash, 71 M.J. at 88 (quoting United States v. Armstrong, 54 M.J. 51, 53 (C.A.A.F.2000)). “Actual bias is personal bias which will not yield to the military judge’s instructions and the evidence presented at trial.” Id. (citing United States v. Reynolds, 23 M.J. 292, 294 (C.M.A.1987)). “Implied bias exists when, regardless of an individual member’s disclaimer of bias, most people in the same position would be prejudiced.” United States v. Bagstad, 68 M.J. 460, 462 (C.A.A.F. 2010) (citations and marks omitted). It’s unlikely that CAAF will revisit its unanimous opinion in Nash to redefine actual bias, and it appears that this case doesn’t raise implied bias.

Accordingly, I anticipate that the oral argument will focus on the application of settled law to specific facts.

In that vein, Appellant’s argument that the member’s question reveals that she “prematurely formed an opinion that Appellant was guilty of the contested issues which included an allegation of making a false official statement” is an argument for actual bias. App. Br. at 10. But if CAAF isn’t persuaded by this argument, or if the failure of the Defense to challenge the member for cause at trial is an insurmountable forfeiture, then the mistrial issue is a halfway decent fallback. Unfortunately for Appellant, it’s only halfway because of two steep barriers to relief. The first barrier is the failure to the Defense to challenge the member at trial, conduct voir dire, and build a record (as was done in Nash). This will make it hard for CAAF to find prejudicial error. The second barrier is the fact – emphasized by the Government’s brief – that a mistrial is a drastic remedy:

[D]eclaring a mistrial is a drastic remedy that should be “reserved for only those situations where the military judge must intervene to prevent a miscarriage of justice.” United States v. Garces, 32 M.J. 345, 349 (C.M.A. 1991). “Because of the extraordinary nature of a mistrial, military judges should explore the option of taking other remedial action, such as giving curative instructions.” United States v. Ashby, 68 M.J. 108, 122 (C.A.A.F. 2009) (citing United States v. Fisiorek, 43 M.J. 244, 247 (C.A.A.F. 1995) and United States v. Evans, 27 M.J 34, 39 (C.M.A. 1988)). In fact, a “curative instruction is the ‘preferred’ remedy for correcting error…as long as the instruction is adequate to avoid prejudice to the accused.” United States v. Taylor, 53 M.J. 195, 198 (C.A.A.F. 2000).

Gov’t Br. at 19.

Juxtaposed against these barriers to relief is the practical reality of how Appellant’s invocation of her right to remain silent became an issue. Having redacted from Appellant’s written statement the responses where she invoked her right to remain silent (after being asked where she planned to go when she absented herself), the military judge asked Appellant if she ever told investigators that she intended to return. Government counsel then asked the question that introduced the rights invocation into the case. The member’s question about lying by omission followed.

I’ve repeatedly written about trouble with questions from the bench, most recently in this post. And Nash illustrates the danger in questions from the members. This case involves objectionable questions from both a member and the bench. I suspect that this is what got CAAF’s attention in the first place. Whether it’s enough to get Appellant relief remains to be seen.

Case Links:
AFCCA opinion
Blog post: Remaining silent isn’t a “lie of omission,” but it’s ok if a member thinks it is
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview

One Response to “Argument Preview: United States v. McFadden, No. 12-0501/AF”

  1. Mike says:

    Doesn’t appear that the military judge reviewed the questions in advancee and gave counsel the opportunity to object or refine.  That’s the danger of allowing court-members to simply spout off with questions without any type of judicial gatekeeping.