The completeness of a member’s response to questions during voir dire is the central issue in United States v. Robinson, No. 20120993 (A. Ct. Crim. App. Dec. 23, 2014) (link to slip op.).
The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of one specification of aggravated sexual assault and two specifications of adultery, in violation of Articles 120 and 134. The sexual assault conviction involved an allegation that the appellant used force to engage in sexual activity with another soldier.
Chief Warrant Officer 4 (CW4) DD was a member of the panel for the appellant’s trial. During voir dire, CW4 DD denied that anyone in his family had been the victim of an offense similar to the allegations against the appellant, and he denied knowledge of “anything that might raise a substantial question concerning whether [he] should participate as a court-martial member.” Slip op. at 3. Neither side challenged the inclusion of CW4 DD as a member of the panel.
After the appellant’s trial, CW4 DD served as a member in another court-martial also involving a sexual assault allegation. In that case, “CW4 DD revealed that his daughter had been sexually assaulted when she was a young child.” Slip op. at 3. A post-trial hearing was held in the appellant’s case to consider whether CW4 DD should have been disqualified, during which CW4 DD explained that “he did not reveal this information when asked questions during voir dire in appellant’s case because at that time he thought the questions were tied to the charges in appellant’s case and he did not believe they were similar to what happened to his daughter.” Slip op. at 3. The military judge denied the appellant’s post-trial challenge of CW4 DD, finding that “CW4 DD testified convincingly on this matter that the incident involving his young daughter did not cross his mind when he was asked those questions because he knew he owed it to both parties to be fair and was sure that he could be.” Slip op. at 3.
The Army CCA affirms. Senior Judge Tozzi writes for a majority of a three-judge panel of the court, while Judge Celtnieks dissents.
Senior Judge Tozzi’s opinion focuses on the following two-prong test:
We apply the Supreme Court’s test in McDonough Power Equip. v. Greenwood, 464 U.S. 548, 556 (1984), when analyzing claims that a panel member failed to disclose information during voir dire: “[A] party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause.”
Slip op. at 4 (citing United States v. Albaaj, 65 M.J. 167, 169-170 (C.A.A.F. 2006)). The majority decides both prongs against the appellant.
On the first prong:
We acknowledge that reasonable people may interpret the term “similar” in broad or narrow ways. However, he testified that the incident involving his daughter did not cross his mind while sitting on the panel. Although he answered the question narrowly, he did not do so dishonestly.
Slip op. at 4. A footnote adds: “We certainly do not condone ‘reticence’ from panel members. However, CW4 DD was not asked a question about sexual assault in general. Rather, he was asked about offenses similar to the charged offenses.” Slip op. at 4 n.2 (citation omitted) (emphasis added).
On the second prong, the majority concludes that CW4 DD was not actually biased, and that the military judge did not err in finding no implied bias despite the fact that “the military judge did not state on the record his application of the law to the facts.” Slip op. at 5.
Central to this holding is the majority’s conclusion that “reasonable minds can disagree as to the correctness of CW4 DD’s answer. Given this reasonable disagreement, CW4 DD’s honesty in answering the question is an important consideration in whether he is implicitly biased.” Slip op. at 6. But dissenting from the majority’s conclusion about CW4 DD, Judge Celtnieks finds that:
Here, CW4 DD’s negative responses at voir dire and failure to divulge the information during trial constituted nondisclosure of a material fact under the first prong of the McDonough test. In a sexual assault case, the fact that a panel member’s child was the victim of a sexual assault is material information that necessarily correlates with the appellant’s right to be judged by an impartial fact finder. This nondisclosure deprived the parties and the military judge of the opportunity to inquire about potential biases harbored by CW4 DD.
Regarding the second prong to the McDonough test, knowledge that CW4 DD’s daughter was the victim of a sexual assault would have established a basis for a valid challenge for cause under Rule for Courts -Martial 912(f)(1)(N) under an implied bias theory.
Slip op. at 11. Judge Celtnieks’ dissent notes that CW4 DD essentially usurped the judicial process with his answer during voir dire:
When CW4 DD decided to answer the boilerplate voir dire questions in the negative, he clearly did not appreciate the effect this would have on the proceeding. . . . By distinguishing his daughter’s case from the charges against the appellant, CW4 DD acted as the judge of his own qualifications and concealed material information from the court.
Slip op. at 12. Judge Celtnieks concludes: “If the information had been revealed during voir dire, I am convinced CW4 DD would have been excused from the panel after a challenge for cause.” Slip op. at 12. Accordingly:
Under the totality of the circumstances, a reasonable public observer would conclude that CW4 DD’s participation as a panel member after failing to disclose his daughter’s sexual assault during appellant’s trial injured the perception of fairness in the military justice system. The findings and sentence should be set aside and a rehearing should be authorized.
Slip op. at 12-13.