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.

Case Links:
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

16 Responses to “Opinion Analysis: An appearance of unfairness leads to reversal in United States v. Woods, No. 14-0783/NA”

  1. Bill Cassara says:

    The fact that this case even made it this far is troubling. Putting aside the MJ’s actions (hard to do, I know) why in the world would the government even oppose such a challenge? Simply stand up and say “we concur” and sit down. If it requires getting another member, so be it. Better that than relitigating the case years later.

  2. Terri Zimmermann says:

    Bill, I totally agree. The Govt seems to think they are required to fight us on every single issue, no matter what it is. This applies equally in state and federal civilian courts in my experience. “I understand why the enforcement of ‘you are guilty until proven innocent’ (just the opposite as in the civilian sector) is essential…” is scary, but an unfortunate reflection of how far the “war on sexual assault” has come.

  3. RKincaid3 (RK3PO) says:

    Sigh.  Ridiculous.  This is UCI in practical, real-world effect–especially in a system where every officer needs to prove their commitment to stamping out sex assault to both Congress and the President in order to get promoted, which desperate condition afflicts even the intermediate military courts (or why else was the trial court ruling affirmed by military appellate judges by not by the civilian appellate judges?  Hmmm….could it be self-interest?), even if doing so means turning the legal system on its head by ignoring due process as well as disobeying the oath of office they took to protect and defend the constitution against foreign and domestic enemies–this enemy being domestic, petty politics and personal agendas (the political agendas of the pols and the personal desire for promotion of all those servicemembers put in the position of doing the right thing legally or getting promoted).
     
    If this case–in addition to all the others involving Art 120 and the silly war on the myth of sex culture–doesn’t glaringly prove the desperate need for changing the UCMJ into a true justice system (from a disciplinary system disguised as a justice system in name only), then absolutely NOTHING will.
     
    But that change will require leadership and fresh ideas in out pols.  And we are unlikely to see either of those traits emerging anytime soon.
     
    The UCMJ is hopelessly, by design, broken, as long as its human components are allowed to have split loyalties, which are then minimized or ignored under the rubric that “panels do the right thing always.”  Well, surprise.  Panels are composed of humans first, and officers and NCOs second.  So human failure is inevitable.  Just systems minimize the opportunities for human failures to manifest, and a just system is one that is designed to substantively guard against, not perpetuate, those failures when the occur.
     
    Few modern Americans in the future–being raised on different societal notions of justice and due process–will volunteer to serve under these conditions.  The UCMJ needs amended NOW or our national defense will be hurting in the future as volunteers fail to come forward.  Either that or we will have to resort to a draft to force people to live under this systemic injustice.

  4. Charlie Gittins says:

    I see this as a military judge failure as well.  Liberal grant mandate applied to a senior officer who, over the course of a 20 year career, doesn’t grasp the most basic of legal concepts.  Without the ROT, I can only surmise that this chhallenge, if granted would bust quorum and the MJ was in a hurry to get the trial started so he “rehabilitated” the member with a bunch of leading questions.  Otherwise, it should be a no brainer.  On another note, it demonstrates how little thought the CA gave to the “best qualified” criteria.  Apparently the CA didn’t bother to look at the questionnaires.  Same with SJA.     

  5. NavyJAG says:

    Anyone else raise an eyebrow that the member’s full name was published in the opinion?  And not just once.

  6. Monday morning QB says:

    As Mr. Gittins says, maybe it was a desire to avoid breaking quorum, which all TCs and judges don’t want to see happen; the command is never ready with the alternates.  But I have also seen members load up their questionnaires and make answers in voir dire just to AVOID sitting on a panel.  Maybe in person in the courtroom the judge saw this and decided to make her do her duty.  I have seen it before and its better to just let them go and avoid this type of issue.  But when I saw this, I dismissed the member and then put on the record I was directing the TC to contact the CA to let the CA know that the member essentially said the magic words to get off the panel and shirked their duties and that they should not be selected to sit in future cases.  Maybe CAAF saw this too and that might be why they named her. 

  7. stewie says:

    It ain’t THAT hard to get some alternates in there.  Sure it might slow things down for an hour or two to contract folks, get their uniforms, and come in, but it’s not something you risk a case over.  It is one thing if someone says, I thought it was one way but turns out it’s another during voir dire, but this person appears to have difficulty getting over the initial concept in their minds, and it was on the questionnaire.  This person, unbidden, offered this response which should suggest the primacy it held in their mind.
     
    Glad CAAF did the right thing here.

  8. Defense Wizard says:

    IMHO, the “liberal grant mandate” is just something MJs say while making the record after they “rehabilitate” a panel member. In high profile civilian trials, we do group voir dire 100 people at a time. Picking a jury takes days, and we might go through 500 people to seat 12+3. I understand the aversion to busting a panel, but you can’t sacrifice justice (or even the appearance thereof) in favor of expediency.

  9. RKincaid3 (RK3PO) says:

     

    When the uniform is gone, they have zero fear there will be any conflicted conscience problems with someone wanting to do the right thing as an officer in fulfillment of their oath of office.

     
    WHAATTTT?  *GASP!!!*

  10. Amateur Hour says:

    Well, this was a particularly absurd read.

  11. Dwight Sullivan says:

    [Standard disclaimer:  This comment is made in my personal capacity and shouldn’t be imputed to anyone or anything else.]  It is unfortunate that someone would post a comment behind the veil of a pseudonym while attacking individuals by name.

  12. Monday morning QB says:

    Defense wizard, there’s no comparing sitting at federal jury with a military panel. When’s the last time an appellant at a federal Circuit got relief over a jury selection issue? Federal judges get huge deference from the circuit courts. There’s no such thing as implied bias in District Court. Military judges get zero deference.  I can guarantee you this is one of the biggest things in the military judges mind at trial, the concern of committing reversible error when seating a panel. On the other hand, getting reversed on a jury selection issue would be something that never crosses a federal judge’s  mind. It just doesn’t happen. 

  13. Michael Lowrey says:

    In case you’re wondering about Villalobos’ background, it came out during oral argument that she’s an O-6 dentist with exactly zero military justice experience.

  14. stewie says:

    Who attacked anyone by name in the comments thread that was anonymous? I think it’s pretty common to hold the opinion this panel member held actually. I don’t see anyone attacking her, just the decision to keep her on the panel.  Are you saying no attacking the decision?

  15. Dwight Sullivan says:

    [Standard disclaimer: This comment is made in my personal capacity and shouldn’t be imputed to anyone or anything else.]  Stewie, my comment concerned a comment that no longer appears in this thread.

  16. Defense Wizard says:

    MMQB – Given this case, getting reversed was not on the mind of the sitting MJ. Even if this panel member were rehabilitated, the implied bias bell has been rung. That being said, in my experian in civilian courts (state), judges wouldn’t rehab people….they’d just give them the boot and call in the next 100 potential jurors.