CAAF will hear oral argument in the Army case of United States v. Peters, No. 14-0289/AR (CAAFlog case page), on Tuesday, October 21, 2014, at 9:30 a.m. This case (and a second case to be argued the same day – preview coming tomorrow) presents CAAF with an issue regarding the test for implied bias in a potential member of a court-martial:
Whether the military judge erred in denying the implied bias challenge against LTC JC, in light of LTC JC’s professional relationship with trial counsel, the special court-martial convening authority, and the investigating officer.
Appellant was convicted contrary to his plea of not guilty, by a general court-martial composed of members with enlisted representation, of causing injury by the drunken operation of a vehicle, involuntary manslaughter, and aggravated assault, in violation of Articles 111, 119, and 128. Appellant also pleaded guilty to drunken operation of a vehicle in violation of Article 111. The members sentenced Appellant to confinement for ten years, reduction to E-1, total forfeitures, and a bad-conduct discharge. The convening authority reduced the confinement portion of the sentence to nine years and six months.
One of the members who sat as part of Appellant’s court-martial was Lieutenant Colonel (LTC) JC. He was a battalion commander who had ongoing professional relationships with the trial counsel, the special court-martial convening authority, and the Article 32 investigating officer. App. Br. at 2-3. The trial counsel was LTC JC’s brigade judge advocate, providing training and advice on operational law and military justice issues. App. Br. at 3. The special court-martial convening authority (who had forwarded Appellant’s case recommending trial) was LTC JC’s immediate superior. App. Br. at 4. The Article 32 investigating officer was LTC JC’s executive officer. App. Br. at 4.
Based on these facts, Appellant’s counsel made a challenge for cause against LTC JC, asserting bias in the fact that LTC JC “was ‘clearly too connected and too related to this case.'” App. Br. at 5. Appellant’s counsel also noted “LTC JC’s ten-second-hesitation in responding to the question, ‘[d]id you form any opinions, or have you formed any opinions, before coming to this court about who is at fault for that accident?’ This hesitation, the defense argued, was evidence that LTC JC struggled with the distinction between being a commander and being a panel member.” App. Br. at 5 (citation to record omitted). But the military judge denied the challenge and LTC JC sat as a member of the panel.
Appellant raised this challenge again on appeal but the Army CCA affirmed. CAAF then granted review.
This case returns CAAF to the issue of implied bias in a service member selected as part of a court-martial. “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). The test for implied bias “is objective, viewed through the eyes of the public, focusing on the appearance of fairness.” Id.
Two years ago, in the certified case of United States v. Nash, 71 M.J. 83 (C.A.A.F. 2012) (CAAFlog case page), CAAF was asked to look at an application of this test after the NMCCA found implied bias and reversed the convictions in a child sexual assault case. CAAF largely avoided that issue by finding actual bias, which is “personal bias which will not yield to the military judge’s instructions and the evidence presented at trial.” Nash, 71 M.J. at 88. But the court explained that “actual bias and implied bias are ‘separate legal tests, not separate grounds for a challenge,'” Id. (quoting United States v. Armstrong, 54 M.J. 51, 53 (C.A.A.F.2000)).
CAAF employs a somewhat unusual standard of review when examining a case for implied bias. “[The] Court’s standard of review on a challenge for cause premised on implied bias is “less deferential than abuse of discretion, but more deferential than de novo review.” United States v. Bagstad, 68 M.J. 460, 462 (2010) (quoting United States v. Moreno, 63 M.J. 129, 134 (C.A.A.F.2006)). The Army CCA’s decision in this case acknowledged this standard but deferred to the military judge’s conclusion about implied bias in this case, finding:
The trial judge permitted broad voir dire of LTC JC. There is a fully developed record of LTC JC’s knowledge of and involvement in the case; his professional relationships with the SPCMCA, CPT JK, and the IO; his hesitation in answering the military judge’s questions regarding whether he had formed an opinion about who was at fault in the case; and whether he could impartially serve as a panel member. The military judge made extensive findings of fact, applied the liberal grant mandate, and employed the proper test for determining whether LTC JC should be challenged for cause based on implied bias. We apply the deference afforded to the military judge and find no basis to disturb the military judge’s denial of the challenge for cause against LTC JC for implied bias.
United States v. Peters, No. 20110057, slip op. at 4 (A. Ct. Crim. App. Oct. 28, 2013) (link to slip op.). While arguing that the CCA gave “too much deference” to the military judge in this case, App. Br. at 20, Appellant’s brief makes a rather subtle argument to expand the standard of review for implied bias:
Unlike actual bias, this Court reviews an allegation of implied bias objectively through the eyes of the public with a focus upon the appearance of fairness. The hypothetical public is assumed to be familiar with the military justice system. Because implied bias is an objective standard, a military judge’s ruling is afforded less deference. This Court evaluates challenges for implied bias based upon the totality of circumstances.
App. Br. at 9 (marks and citations omitted). Appellant then posits the issue in this case as “whether the public would perceive this trial as being less than fair given LTC JC’s professional relationships with the key players in this court-martial, especially the trial counsel.” App. Br. at 11. Presumably CAAF will see itself as uniquely suited to make this determination, as CAAF’s “civilian review is a sine qua non for the credibility of the military justice system.” United States v. Moss, 73 M.J. 64, __, diss. op. at 5 (C.A.A.F. 2014) (Baker, C.J. dissenting) (CAAFlog case page).
I think Appellant’s strongest point is the preexisting relationship between the trial counsel and LTC JC. “The brigade judge advocate is the primary legal advisor to the brigade commander.” FM 1-04, Legal Support to the Operational Army, para 4-9 (available here). In a footnote, Appellant’s brief argues that certain types of relationships between a member and counsel should create a presumption of bias:
This Court should also consider [United States v. Polichemi, 201 F.3d 858, 863-64 (7th Cir. 2000)] observation that federal common law has long recognized that the mere existence certain types of relationships between counsel and prospective jurors implicate presumptive bias even if the relationship otherwise has no direct connection to the trial. 201 F.3d at 863-64. Under this analysis, an ongoing relationship between a commander and his/her current organizational trial counsel would result in presumptive bias. While a trial counsel’s client is the service, commanders act as the representative of their service. As such, commanders rely on their trial counsel not only to explain UCMJ options, but also to provide counsel regarding which option is appropriate in a given context. Moreover, commanders have a right to expect conversations with trial counsel will remain confidential unless disclosure is necessary for an official purpose. These factors create a quasi-attorney-client relationship between commanders and their organizational trial counsel unlike other personal or professional relationships counsel may have with potential members. Therefore, regardless of any other facts, this Court should hold such relationships necessarily imply bias because “in general persons in a similar situation would feel prejudice.” Id. at 864 (quoting United States v. Burr, 25 Fed. Cas. 49, 50 (C.C. Va. 1807)).
App. Br. at 12 n.4. Such presumptive disqualifications are not totally unprecedented in military justice. See R.C.M. 502(d)(4) (factors that disqualify counsel). But Appellant’s position has the potential to create a vast grey area, highlighted by the fact that Appellant acknowledges the possibility of “a quasi-attorney-client relationship between commanders and their organizational trial counsel.” Id. (emphasis added).
The Government’s response focuses on the deference afforded to the military judge:
The military judge, sitting in the “best position” to evaluate the member, found no implied bias. The military judge focused on LTC JC’s appearance in court. His analysis provides the lens through which the objective observer would view LTC JC. Any possible trepidation by the hypothetical objective observer would vanish in light of all the thoughtful answers given by LTC JC, his demeanor during voir dire, and candor with all parties.
Gov’t Br. at 13. The Government doesn’t address Appellant’s argument for presumptive bias directly, but it does highlight the realities of military justice:
Situations in which trial attorneys have prior or current professional relationships with members of the panel may be unavoidable.
Gov’t Br. at 14. The Government considers this unremarkable:
An objective observer, familiar with the military justice system, would understand that commanders like LTC JC often receive advice from attorneys, but ultimately must make their own decisions.
Gov’t Br. at 14. I think CAAF’s decision in this case will turn on whether this is a fair assessment of what an objective observer would see.
This case presents an interesting mix of deference and policy, and its facts may stretch CAAF’s pragmatism to the limit. The military judge permitted extensive voir dire, considered Appellant’s bias challenge, and made clear findings on the record. These factors generally demand significant deference to the trial-stage decision. But the unique relationship between LTC JC and the trial counsel presents CAAF with a case-specific factor that might tip the balance in favor of Appellant, particularly since Appellant raised the issue at trial. CAAF may impose a bright-line rule against such preexisting relationships. But even if it does, I think the court’s civilian objectivity will be the ultimate test.