CAAF will hear oral argument in the Navy case of United States v. Woods, No. 14-0783/NA (CAAFlog case page), on Wednesday, February 25, 2015. The case presents a single issue that addresses the persistent myth that service members give up their constitutional rights when joining the military:
Whether the military judge erred by denying a challenge for cause against the court-martial president, who said the “guilty until proven innocent” standard is “essential” to the military’s mission.
Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of one specification of aggravated sexual assault in violation of Article 120, UCMJ (2006). The senior member of the panel that convicted Appellant was a Navy captain (O-6) who provided the following written response in a members questionnaire:
The questionnaire asked, “What is your opinion of the military’s criminal justice system?” CAPT Villalobos answered:
There is not [a] perfect system, and I understand why the enforcement of ‘you are guilty until proven innocent’ (just the opposite as in the civilian sector) is essential because the military needs to be held to a higher standard just for reasons of our mission. It is a voluntary force and you come into the service knowing that you will be held to this higher standards [sic] and give up your civil rights.
App. Br. at 2. See also Gov’t Br. at 2. The Captain was selected for the panel and questioned extensively by both sides during voir dire. Ultimately, the military judge asked the Captain the following series of leading questions:
MJ: Okay. Captain, going back to your answer to question 20, it appears that you, in fact, arrived at this court-martial with an erroneous understanding of the burden of proof in this case.
CAPT MV: Right.
MJ: Is that fair to say?
CAPT MV: Yes.
MJ: Okay. And your answer also tends to indicate that you might think that there would be a good reason for the military to operate under a system like the one that you presumed that we did.
CAPT MV: Um-huh.
MJ: I want to make sure in my own mind and for the record that you understand that the burden of proof in this case is on the government, that it never shifts to the defense.
CAPT MV: Right. I understand that.
MJ: And that the obligation for a conviction in this case is that the government must prove their case beyond a reasonable doubt. Do you understand that?
CAPT MV: Yes.
MJ: Are you completely comfortable with that?
CAPT MV: Yes.
MJ: You don’t have any reservations in your own mind about following that instruction when I give it to you?
CAPT MV: I don’t have any reservations.
United States v. Woods, No. 201300153, slip op. at 4-5 (N-M. Ct. Crim. App. Jun. 26, 2014) (quoting record at 296-97). The defense challenged the member for cause, the military judge denied the challenge, and the NMCCA affirmed.
Appellant asserts that the Captain should have been removed from the panel under both actual and implied bias theories. “Actual bias is personal bias which will not yield to the military judge’s instructions and the evidence presented at trial.” United States v. Nash, 71 M.J. 83, 88 (C.A.A.F. 2012) (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).
But implied bias was the topic of CAAF’s recent decisions in United States v. Peters, __ M.J. __, No. 14-0289/AR (CAAFlog case page), and United States v. Castillo, __ M.J. __, No. 14-0457/AR (CAAFlog case page):
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, __ M.J. at __, slip op. at 8 (emphasis added). A ruling denying a challenge for cause based on an implied bias theory also gets less deference on review. A ruling on actual bias is reviewed under the highly deferential standard of abuse of discretion, while one on implied bias is reviewed in a manner that is “less deferential than abuse of discretion, but more deferential than de novo review.” Peters, __ M.J. at __, slip op. at 5 (quoting United States v. Moreno, 63 M.J. 129, 134 (C.A.A.F. 2006); United States v. Napoleon, 46 M.J. 279, 283 (C.A.A.F. 1997)). So Appellant’s challenge of the Captain in this case stands a greater chance of succeeding under an implied bias theory.
Appellant’s brief aggressively pursues both theories, asserting that the military judge’s ruling was based on the erroneous finding of fact that “when CAPT Villalobos was speaking about a ‘higher standard,’ she was not referring to the burden of proof at court-martial. Rather, the military judge found that she was referring to a belief that military members are held to a higher standard of personal conduct than civilians.” App. Br. at 7. Appellant asserts that the record does not support this finding:
In light of these facts, the record does not fairly support the benign gloss the military judge gave to CAPT Villalobos’s statements. By straining to conclude that CAPT Villalobos meant something other than what she actually said, the military judge predicated his decision on a clearly erroneous finding. This was an abuse of his discretion.
App. Br. at 9.
Additionally, Appellant asserts that it was error for the judge to use leading questions to rehabilitate the member, and that the judge “relied too much on the tainted member’s own disclaimer of bias.” App. Br. at 10. Appellant ultimately sees this member as beyond rehabilitation:
Here, the member’s own statements on voir dire avowing impartiality are not enough to allay concern because her initial prejudice was so unequivocal and undercuts two fundamental pillars of due process-–the presumption of innocence and the burden of proof. This was not a simple misunderstanding. The court-martial president knew that the “guilty until proven innocent” standard is “just the opposite as in the civilian sector.” Yet she believed it was “essential” to the military’s mission, noting that those who join the military “give up [their] civil rights.” The court-martial president was not merely expressing an opinion, she was sermonizing. Her later declarations of impartiality, no matter how sincere, were not sufficient to ameliorate concern about her bias. The military judge erred by ruling to the contrary.
App. Br. at 12-13.
The Government’s position is that the Captain’s feelings about military justice are likely commonplace among service members:
CAPT Villalobos arrived at the court-martial with an incorrect understanding of the burden of proof; she had no mental reservations in applying the correct “guilt beyond a reasonable doubt” standard; and, her comments relating to holding service members to a higher standard were not related to standards of proof in court, but rather were her expectations for standard of behavior of servicemembers in daily life.
CAPT Villalobos’ presence on the members panel also posed no threat of implied bias, as most people in similar circumstances as her would not be prejudiced. . . . Her initial misunderstanding of the law likely affects many military court-martial and jury members.
Gov’t Br. at 10-11 (emphasis added). CAAF is unlikely to be sympathetic to the Government’s argument that it is commonplace for a senior officer to believe that in the military an accused is “guilty until proven innocent.”
The Government’s brief also takes aim at CAAF’s test for implied bias, asserting the court “has provided multiple, inconsistent, implied bias tests over the years.” Gov’t Br. at 19. The Government’s brief argues that CAAF should eliminate consideration of the public’s perception of the fairness of the trial from the analysis of the implied bias theory, and that the test should focus solely on whether an objective person in the position of the challenged member would be prejudiced:
If “public perception” is the test, then objectively looking to whether a reasonable person in the member’s shoes would be biased is pointless. Alternatively, looking to whether “the public” would find it “unfair” if most people were in the member’s shoes likewise voids the objective test of the reason for its creation. Implied bias was created to complement actual bias. It should provide a R.C.M.912(f)(1)(N) basis for dismissing a member, as in Federal courts where, despite a lack of actual bias, most people in identical shoes to the member would nonetheless be biased.
Gov’t Br. at 23. If adopted, the Government’s position would radically transform the implied bias theory. But considering that Chief Judge Baker’s recent majority opinions in Peters and Castillo highlighted the public’s perception of the fairness the trial (and even noted the accused’s own perception), it’s unlikely that the court will now abandon that consideration.
Finally, the Government makes a surprising argument that CAAF should review implied bias de novo, eliminating the deference that the current standard of review affords to a military judge’s decision on a challenge involving implied bias. Gov’t Br. at 17. Predictably, Appellant agrees with the Government’s suggestion of de novo review in a reply brief. It’s surprising that the Government would make this argument, because de novo review eliminates the deference contained within the current standard of review for implied bias: “less deferential than abuse of discretion, but more deferential than de novo.” Peters, __ M.J. at __, slip op. at 5 (citations omitted). An appellate court is less likely to affirm a judge’s denial of a challenge for cause under a de novo standard than it is under the current standard, and implied bias is generally only an issue in the case of a conviction (as a challenge is not a basis for an interlocutory appeal; however, the Government could seek extraordinary relief similar to what happened in United States v. Colonel Eller, Military Judge, and McGrath, Real Party in Interest, Misc. Dkt. No 2013-15 (A.F. Ct. Crim. App. Jun. 21, 2013) (discussed here)).
The Government is effectively asking CAAF to make it easier for an appellant to win reversal by showing that a member should have been excused from the panel. Because of this, regardless of whether Appellant wins relief in this case, CAAF’s consideration of the standard of review to be applied to a ruling on implied bias will make the court’s decision in this case a significant precedent.