Opinion Analysis: CAAF tackles implied bias with mixed decisions in United States v. Peters, No. 14-0289/AR, and United States v. Castillo, No. 14-0457/AR
CAAF decided the Army cases of United States v. Peters, 74 M.J. 31, No. 14-0289/AR (CAAFlog case page) (link to slip op.), and United States v. Castillo, 74 M.J. 39, No. 14-0457/AR (CAAFlog case page) (link to slip op.), on Thursday, February 12, 2015. Both cases presented issues questioning whether the military judges erred in denying defense challenges of members for cause based on implied bias. CAAF finds error in Peters and reverses the convictions and the decision of the Army CCA, but the court finds no error in Castillo and affirms the convictions and the CCA.
Chief Judge Baker writes for the court in both cases. Judges Stucky and Ryan both write separately; both dissent from the finding of error in Peters, and both concur with the result in Castillo.
CAAF has made it clear that “actual bias and implied bias are ‘separate legal tests, not separate grounds for a challenge.’” United States v. Nash, 71 M.J. 83, 88 (C.A.A.F. 2012) (CAAFlog case page) (quoting United States v. Armstrong, 54 M.J. 51, 53 (C.A.A.F. 2000)). But those separate tests receive different degrees of deference on review:
A military judge’s ruling on a challenge for cause is reviewed for an abuse of discretion. Military judges are afforded a high degree of deference on rulings involving actual bias. This reflects, among other things, the importance of demeanor in evaluating the credibility of a member’s answers during voir dire. By contrast, issues of implied bias are reviewed under a standard less deferential than abuse of discretion but more deferential than de novo. Observation of the member’s demeanor may inform judgments about implied bias; however, implied bias is reviewed under an objective standard, viewed through the eyes of the public.As this Court has often stated, at its core, implied bias addresses the perception or appearance of fairness of the military justice system.
United States v. Downing, 56 M.J. 419, 422 (C.A.A.F. 2002) (marks and citations omitted) (emphasis added). It is the application of this special deference that splits CAAF in Peters, and is at the heart of the court’s strained unanimity in Castillo.
The challenges at issue in both cases involved professional relationships between the trial counsel and a member. In Peters, one of the members was a lieutenant colonel battalion commander who had an ongoing professional relationships with the trial counsel, the special court-martial convening authority, and the Article 32 investigating officer. In particular, the trial counsel in Peters was the lieutenant colonel’s brigade judge advocate, providing training and advice on operational law and military justice issues. A similar relationship existed in Castillo, but that member was also a supervisor of two other members and had been a victim of a similar crime. Both members were challenged and both challenges were denied.
Rule for Courts-Martial (R.C.M.) 912(f)(1)(N) states that a member shall be excused if he or she “should not sit as a member in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality.” Chief Judge Baker’s opinion in Peters explains that this rule:
[S]ets the basis for an implied bias challenge, which stems from the “historic concerns about the real and perceived potential for command influence” in courts-martial. Clay, 64 M.J. at 277. Unlike the test for actual bias, this Court looks to an objective standard in determining whether implied bias exists. United States v. Wiesen, 56 M.J. 172, 175 (C.A.A.F. 2001). The core of that objective test is the consideration of the public’s perception of fairness in having a particular member as part of the court-martial panel. Rome, 47 M.J. at 469 (C.A.A.F. 1998). In reaching a determination of whether there is implied bias, namely, a “perception or appearance of fairness of the military justice system,” the totality of the circumstances should be considered. United States v. Dale, 42 M.J. 384, 386 (C.A.A.F. 1995). While cast as a question of public perception, this test may well reflect how members of the armed forces, and indeed the accused, perceive the procedural fairness of the trial as well.
Peters, slip op. at 8 (emphasis added). Additionally, Chief Judge Baker emphasizes that “the military judge is also mandated to err on the side of granting a challenge. This is what is meant by the liberal grant mandate.” Slip op. at 6.
In Peters, the majority finds that the relationship between the member and the trial counsel “could undermine the perception of fairness in the proceedings.” Slip op. at 11. Specifically, the majority finds:
[T]he appearance that there was a qualitative bond between counsel and member that could undermine perceptions of fairness. None of which is to suggest either officer did anything wrong. We should want and wish for especially strong bonds between judge advocates and the commanders they advise, provided such bonds do not carry over or appear to carry over into the trial proceedings.
Slip op. at 12. Yet Chief Judge Baker notes that Peters “is a close case and a rare case where the record reflects a qualitative bond rising to the level of implied bias.” Slip op. at 3. A different result is reached in Castillo because:
In contrast to [Peters], the panel members’ relationships with trial counsel in this case were not of a qualitative nature to rise above the normative sorts of relationships expected in military service that could impact perceptions of fairness.
Castillo, slip op. at 2-3.
While disagreeing with the majority’s conclusion, Judge Stucky’s dissent in Peters also notes two concerns that almost jump off the pages of Chief Judge Baker’s opinions in these two closely-related cases: The facts don’t appear so different as to justify the different results, and the majority appears to expand the law.
Judge Stucky writes:
I also do not see how trial counsel’s relationship with the panel member in this case is distinguishable from that in [Castillo]. There, the trial counsel served with and provided military justice assistance to each of the four challenged members. See id. at __ (3-6). One member met regularly with trial counsel to discuss ongoing military justice matters within his battalion. Another consulted with trial counsel regarding an officer separation board resulting from allegations of larceny and rape. Both viewed trial counsel’s legal advice to be sound. The majority has not explained why the relationship in Peters “exceeds the norm,” __ M.J. at __ (12), whereas the relationships in Castillo were so minor as to merit little mention of their relevance to implied bias challenges. Castillo, __ M.J. at __ (9).
Finally, the majority appears to expand the ambit of the “public perception” test contrary to our case law by writing that the implied bias test “may well reflect how members of the armed forces, and indeed the accused, perceive the procedural fairness of the trial as well.” Peters, __ M.J. at __ (8). The accused’s perception of the fairness of his trial has never been part of the implied bias test.
Peters, diss. op. of Stucky, J. at 3-4 (emphasis in original). He makes his second point – about the accused’s perception – again in his concurring opinion in Castillo.
Judge Ryan’s dissent in Peters raises pragmatic concerns:
It is unclear to me what level of excruciating detail the majority now requires of the trial judiciary when denying a member challenge. They do not have the luxury of time afforded appellate courts.
While a bright-line rule excluding members on the basis of implied bias where the trial counsel has advised the member might, as an empirical matter, be viewed as only fair by an objective member of the public, we rejected such a rule long ago.
Peters, diss. op. of Ryan, J. at 1. She is equally pragmatic in her concurring opinion in Castillo:
It is my view that, where the correct law is recognized and there is no erroneous application of the law or view of the facts, military judges should receive the deference to which they are entitled under our precedent on matters of implied bias. This Court is better suited to remind military judges that challenges are to be liberally granted — and, relatedly, that excusing a member on the basis of implied bias is not a condemnation of any particular member’s sincerity, integrity, or fitness — than to review on a case-by-case basis how much qualitative and quantitative contact between a convening authority and a trial counsel who serves as the legal counsel for that convening authority a member of the public would view as unfair.
This Court has repeatedly eschewed a bright-line rule requiring military judges to grant challenges for cause on the basis of implied bias against members who have or have had a professional relationship with legal counsel. See United States v. Rome, 47 M.J. 467, 469 (C.A.A.F. 1998) (holding a member’s “professional relationship with the trial counsel was not per se disqualifying”); United States v. Hamilton, 41 M.J. 22, 25 (C.M.A. 1994) (finding no “per se ground for challenge” where three members had received legal assistance from the assistant trial counsel); see also United States v. Peters, __ M.J. __, __ (1-2) (C.A.A.F. 2015) (Ryan, J., dissenting). However reasonable I might find such a bright-line rule in the case of an implied bias challenge against a commanding officer sitting as a panel member, even as her legal advisor served as trial counsel, if presented with it as a matter of first impression, I agree that the military judge should receive deference. I respectfully concur in the result.
Castillo, con. op. of Ryan, J. at 1-2.
Of course, it’s hard to see a better way “to remind military judges that challenges are to be liberally granted” than by reversing a case because of the failure to grant a challenge.
Case Links (Castillo):
ACCA opinion (summary affirmation)
• Appellant’s brief
• Appellee’s (Government) brief
• Appellant’s reply brief
• Blog post: Argument preview
• Oral argument audio
• CAAF opinion
• Blog post: Opinion analysis