Opinion Analysis: An appearance of unfairness leads to reversal in United States v. Woods, No. 14-0783/NA
CAAF decided the Navy case of United States v. Woods, 74 M.J. 238, No. 14-0783/NA (CAAFlog case page) (link to slip op.) on Thursday, June 18, 2105. The court concludes that the military judge erred in denying the appellant’s challenge of a member who initially believed that the military employs a guilty-until-proven-innocent standard. Finding implied bias, CAAF reverses the decision of the NMCCA and the appellant’s conviction.
Chief Judge Baker writes for a nearly-unanimous court. Judge Stucky concurs in the result, but he concludes that the member should have been excused for actual bias, not implied bias.
The 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). He was sentenced to confinement for five months, total forfeitures, and a dismissal. The NMCCA affirmed the findings and sentence.
CAAF granted review of a single issue:
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.
More than half of Chief Judge Baker’s opinion is dedicated to reproducing portions of the member’s questionnaire, voir dire responses, and the military judge’s rulings on the appellant’s challenge. It begins:
in advance of Appellant’s trial, CAPT Villalobos completed a court-martial member questionnaire. In response to an open-ended question regarding her view of the military justice system, CAPT Villalobos provided the response at issue in this appeal:
[Q.] What is your opinion of the military’s criminal justice system?
[A.] 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 standard and give up your civil rights.
Slip op. at 4 (marks in original). The defense challenge the member but the military judge denied the challenge, ruling in part that:
With respect to Captain Villalobos, I have specifically considered the liberal grant mandate and examined her answers for actual bias as well as implied bias. I am going to focus here for a minute on her answers to the member’s questionnaire pertaining to what the relevant burden of proof is in a court-martial. It’s absolutely the case that she did arrive at this court-martial under a misapprehension of what the burden of proof is at a court-martial. I don’t find that to be disqualifying. I evaluated her demeanor as she answered questions. When I asked her candidly “Did you — were you under the impression that that was the relevant standard in these cases,” and she says “Yes,” and she acknowledged that that was a misapprehension on her part.
Slip op. at 8.
Analyzing the defense challenge, Chief Judge Baker begins by emphasizing the different standards of review applied to issues of actual bias and implied bias:
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.
Slip op. at 11 (quoting United States v. Downing, 56 M.J. 419, 422 (C.A.A.F. 2002)). The Government actually argued that CAAF should change the standard for implied bias reviews, making it de novo (and thereby removing the deference given to a judge’s ruling). But in a footnote Chief Judge Baker explains that CAAF “decline[s] to amend our standard of review, because we believe it affords an appropriate level of deference to the military judge in light of the fact that resolving claims of implied bias involves questions of fact and demeanor, not just law.” Slip op. at 11 n.1.
Applying the settled standards of review, Chief Judge Baker first finds no actual bias “in the context of this case, where the military judge concluded that CAPT Villalobos credibly expressed her intention to follow his instructions despite her initial mistaken belief as to the burden of proof employed by the military justice system.” Slip op. at 12. But on implied bias, Chief Judge Baker emphasizes the significant role that public perception plays in determining the existence of implied bias:
Unlike the test for actual bias, this Court looks to an objective standard in determining whether implied bias exists. 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. 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.
Slip op. at 13 (quoting United States v. Peters, 74 M.J. 31, 34 (C.A.A.F. 2015) (CAAFlog case page)). Chief Judge Baker also emphasizes an important point about the possibility of rehabilitating a member with voir dire (a common strategy at courts-martial):
while it will often be possible to “rehabilitate” a member on a possible question of actual bias, questions regarding the appearance of fairness may nonetheless remain.
Slip op. at 13. The appearance of fairness is measured by “whether the risk that the public will perceive that the accused received something less than a court of fair, impartial members is too high.” Slip op. at 14 (citations omitted). In this case, CAAF concludes that “there is too high a risk that the public would question the fairness of Appellant’s trial.” Slip op. at 14 (marks and citation omitted).
That conclusion is based on three factors: (1) that the convening authority had access to the member’s questionnaire for more than two months before selecting her to serve on the panel (despite her belief in a guilty-until-proven-innocent standard); (2) that the member’s mistaken belief goes to a fundamental tenets of american criminal law; and (3) that the military judge’s conclusions about the member’s bias were wrong in three respects:
the military judge did not view CAPT Villalobos’s questionnaire response and voir dire as representing a close case, but rather credited her temperament and demeanor in denying the challenge for cause. The military judge also noted that CAPT Villalobos’s statement that military members “give up their civil rights” was not incorrect, because Appellant has “given up the right to trial by members or by a civilian jury, a unanimous verdict.” Ultimately, the military judge concluded that CAPT Villalobos’s mistaken belief as to the burden of proof in criminal law related to “a technical legal matter.”
Slip op. at 16. It’s unclear how heavily the military judge’s analysis weighs in CAAF’s decision. Chief Judge Baker notes that “an informed member of the public might well, ask why, absent any operational military necessity, the military judge retained” this member. Slip op. at 17. That seems to be an emphasis on the relative ease of replacing a member before trial rather than litigating a bias issue on appeal (one of the reasons what CAAF employs a liberal grant mandate), and not an emphasis on the fact that CAAF reached different conclusions about the member’s bias than the judge. This view is supported by Chief Judge Baker’s conclusion which states:
In view of the considerations raised above, we believe the defense challenge to CAPT Villalobos’s participation on the panel presented, at minimum, a close question. Thus, particularly in view of the liberal grant mandate, the military judge erred in denying the defense challenge for cause on grounds of implied bias, and that error prejudiced Appellant’s substantial rights.
Slip op. at 17. The court sets aside the findings and sentence and authorizes a rehearing.
Judge Stucky’s concurring opinion agrees with the court’s final action in the case, but he does not accept the majority’s conclusion regarding the member’s credible expression of her intent to apply the proper standard. Rather, he sees the member as lacking impartiality, writing that:
If there is evidence from which an inference can be drawn that the member will not be impartial, as is the case here, or may be unlawfully influenced, that is actual bias.
Con. op. at 2. Reviewing the bases for a challenge for cause and defining actual bias as the existence of “evidence that such members are not impartial or from which the military judge may infer they would not be,” Judge Stucky explains that:
Although Appellant argues both actual and implied bias, his argument sounds in actual bias. He is asserting that Captain Villalobos’s misunderstanding of the presumption of innocence and the burdens of proof and persuasion would compromise her ability to decide his case impartially. This is the very definition of actual bias. This is not a case of implied bias.
Con. op. at 4. Judge Stucky also notes that appellate courts give deference to trial judges’ determinations about a member’s (or juror’s) bias, but he concludes:
After reviewing the entire voir dire of Captain Villalobos, I am left with the firm conviction that the military judge erred in believing Captain Villalobos’s protestations of impartiality. I, therefore, concur in the result.
Con. op. at 5.
Woods is the last of four significant members bias cases on CAAF docket this term, the others being Peters, Castillo, and McFadden. Of these four cases, the court is least divided in Woods. The court’s near-unanimity in this case suggests that its facts are particularly significant, as the following language from Judge Ryan’s dissenting opinion in Peters comes to mind:
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.
74 M.J. 31, __ (diss. op. at 1). The Peters majority found implied bias by applying the same standards used in this case, but its conclusion here finds broader support among the judges of CAAF than its conclusion in Peters. Nevertheless, the conclusions in both this case and in Peters are firmly based on the appearance of unfairness at trial.
• NMCCA opinion
• Appellant’s brief
• Appellee’s (Government) brief
• Appellant’s reply brief
• Blog post: Argument preview
• Oral argument audio
• CAAF opinion
• Blog post: Opinion analysis