CAAF will hear oral argument in the Army case of United States v. Castillo, No. 14-0457/AR (CAAFlog case page), on Tuesday, October 21, 2014, after it hears oral argument in the Army case of United States v. Peters, No. 14-0289/AR (CAAFlog case page). Like Peters, Castillo presents CAAF with an issue regarding the test for implied bias in a potential member of a court-martial:
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.
Of note, this is one of two cases on CAAF’s docket this term involving service members named Castillo. This case is from the Army. The other case is from the Navy and involves the self-reporting requirement: United States v. Castillo, No. 14-0724/NA (CAAFlog case page).
Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of member with enlisted representation, of of rape and assault consummated by a battery, in violation of Articles 120 and 128. He was sentenced to confinement for two years, reduction to E-1, total forfeitures, and a dishonorable discharge. The convening authority approved 23 months of the adjudged two years of confinement, and approved the rest of the sentence. The Army CCA summarily affirmed the conviction.
At trial Appellant’s defense counsel challenged six members for cause based on the fact that the trial counsel (prosecutor) “served with and provided military justice assistance to each of these members.” App. Br. at 3. One of these members was Lieutenant Colonel (LTC) DS. He was also challenged on the additional bases of his “personal experience as a child molestation victim and his civilian sexual assault training.” App. Br. at 4. The military judge granted one of the challenges for a different reason but denied the other five, and the Defense used its preemptory challenge on a different member. That left LTC DS and three other challenged members as part of the court-martial panel. Of those other three, LTC DS was the commander and direct supervisor of two.
Appellant’s brief argues six reasons why LTC DS should not have been part of the panel.
The first is the trial counsel’s relationship with LTC DS. Appellant asserts that “while not per se disqualifying, a professional relationship between a panel member and the trial counsel supports an implied bias challenge where that relationship includes the ongoing provision of military justice advice.” App. Br. at 9. The Government’s response is that this relationship was limited in duration and impact, explaining that:
In addressing the issue of LTC DS’s relationship with the trial counsel, the military judge noted that LTC DS said, “without prompting by anyone,” that he “sometimes agrees with [the trial counsel’s] advice and sometimes not.” The military judge further noted that the relationship between the two had been over a period of three months.
Gov’t Br. at 7. Notably, Appellant’s brief includes a footnote arguing that certain types of relationships between a member and counsel should create a presumption of bias. App. Br. at 11 n.2. This footnote is identical to a footnote found in the brief of the appellant in Peters.
Appellant’s second argument for LTC DS’ bias actually looks to the other members, asserting that “a majority of the members held a favorable view of the trial counsel.” App. Br. at 12. This is drawn from the fact that LTC DS “was one of four members on SGT Castillo’s seven member panel who received military justice assistance from the trial counsel.” Id. The Government’s response asserts that the Defense did not raise the issue “of the cumulative effect of the members’ relationship with trial counsel” at the trial stage. Gov’t Br. at 9. The Government’s brief also responds to the Appellant’s argument for a presumption of bias:
In his brief, appellant cites United States v. Polichemi [201 F.3d 858, 863-64 (7th Cir. 2000)] and urges this court to adopt a presumption of implied bias where members of the trial counsel’s current command are serving as panel members. As this court has long recognized, there are substantial differences between the military system of justice and the civilian system. One of those is the pool of prospective jurors. Unlike in the civilian system, there is a strong likelihood that members of the panel may know and/or have current or prior dealings with counsel from either side. This is not, and should not be, per se disqualifying, nor should it be considered to give rise, on its own, to an implied bias. To find otherwise would result in a potentially unworkable situation, given the practical realities of military justice in some parts of the world. Furthermore, such a presumption is not necessary. Any chance of prejudice to an accused, or potential for a public perception of unfairness, is remedied by the extensive voir dire process and wide latitude granted to defense counsel to question prospective panel members. As appellant notes in his brief, one of the standard voir dire questions from the military judge covers any prior dealings with counsel from either side. Here, the system functioned just as it should.
Gov’t Br. at 18-19.
Appellant’s third argument highlights the supervisor-subordinate relationship between LTC DS and two other members. While acknowledging that this is “not a per se disqualification,” Appellant’s brief asserts that “the number of senior-subordinate relationships between members is a valid consideration when conducting an implied bias analysis.” App. Br. at 13. The Government’s response highlights the fact that the military judge questioned these members about this relationship, and the Government emphasizes that a military judge’s “in-court assessment of demeanor should not be second-guessed on appeal.” Gov’t Br. at 15.
Appellant’s fourth argument asserts than an objective observer would expect LTC DS to sympathize with other sexual assault victims because LTC DS was molested by an 18 year-old man when LTC DS was a child, and that the man was never brought to justice. Appellant ties this fact to the facts of his case because:
Here the government accused SGT Castillo of raping his wife by rendering her unconscious. Like LTC DS’s experience, the rape allegation involved the sexual exploitation of a physically weak or helpless victim by a much stronger assailant. That LTC DS’s assailant was never brought to trial potentially exacerbates his bias. Regardless of his subjective disclaimers, an objective member of the public would view LTC DS as sympathetic toward SGT Castillo’s wife and her quest for justice. Moreover, at sentencing, LTC DS, more than any other panel member, could commiserate with the alleged victim’s impact testimony.
App. Br. at 15. The Government response asserts that “the facts of appellant’s case, which involve an allegation of sexual assault by a husband against his wife, were sufficiently dissimilar from LTC DS’s reported situation to warrant no relief.” Gov’t Br. at 13.
Appellant’s fifth argument highlights the fact that the members all came from Appellant’s brigade. This fact is used to support an argument that there is an appearance that the Government counsel actively sought to stack the panel:
Here, the limited pool of panel members did result in a significant number of suspect relationships among the members. The government’s opposition to SGT Castillo’s challenges because of these relationships creates the appearance that the trial counsel actively sought to maintain members with whom he had regular professional interactions. Therefore, the military judge should have been all the more sensitive to SGT Castillo’s concerns about these relationships “to address questions that may linger in public perception regarding the appearance of bias in the selection of members.” Townsend, 65 M.J. at 467 (Baker, C.J., dubitante).
App. Br. at 17. The Government’s response highlights the fact that Appellant did not make this argument at trial, asserting that this constitutes forfeiture and that it creates an insufficient record on which to base relief:
This court-martial was held in Korea. It may have been that panel members were selected from a limited pool due to operational necessity or national security exigency. However, because appellant did not raise the issue, the record is lacking in this regard.
Gov’r Br. at 20.
Finally, Appellant argues that the cumulative effect of the other arguments “at the very least, created a close case triggering the liberal grant mandate.” App. Br. at 18. But the Government sees this final argument as “the mere piling of multiple non-meritorious claims on top of each other.” Gov’t Br. at 20.
Appellant’s brief ends with an assertion that “the military judqe cited but did not apply the liberal grant mandate.” App. Br. at 19. Between this case and Peters, the liberal grant mandate may get something of a face lift from CAAF. Seven year ago the court described the mandate this way:
In short, the liberal grant mandate is part of the fabric of military law. The mandate recognizes that the trial judiciary has the primary responsibility of preventing both the reality and the appearance of bias involving potential court members. To start, military judges are in the best position to address issues of actual bias, as well as the appearance of bias of court members. Guided by their knowledge of the law, military judges observe the demeanor of the members and are better situated to make credibility judgments. However, implied bias and the liberal grant mandate also recognize that the interests of justice are best served by addressing potential member issues at the outset of judicial proceedings, before a full trial and possibly years of appellate litigation. The prompt resolution of member challenges spares the victim the potential of testifying anew, the government the expense of retrial, as well as society the risk that evidence (in particular witness recollection) may be lost or degraded over time. As a result, in close cases military judges are enjoined to liberally grant challenges for cause. It is at the preliminary stage of the proceedings that questions involving member selection are relatively easy to rapidly address and remedy.
United States v. Clay, 64 M.J. 274, 277 (C.A.A.F. 2007) (emphasis added). Asserting that the judge failed to apply the mandate, Appellant’s brief makes an argument that will sound familiar to many trial practitioners:
[T]he military judge’s focus was on finding reasons why each individual basis for challenge was insufficient, rather than simply excusing LTC DS based on the appearance of those issues as a whole. There was no reason for this. As emphasized in Clay, this appellate issue could have been easily avoided had the military judge liberally granted the defense challenge for cause against LTC DS.
App. Br. at 20.
I think the facts of this case provide more indicators of bias than the facts of Peters (where the focus is on the professional relationship between trial counsel and member), and I think CAAF’s decision in this case is more likely to have broad application than its decision in Peters.