CAAF will hear oral argument in the Coast Guard case of United States v. Rogers, No. 16-0006/CG (CAAFlog case page), on Tuesday, March 15, 2016. In this sexual assault case involving an intoxicated alleged victim, the court will determine whether it was error for the military judge to deny a defense challenge of a member, with the following issue:
Whether the military judge erred in denying the implied bias challenge against CDR K in light of her various professional and personal experience with sexual assault.
The member primarily served as the “Leadership, Diversity, and Inclusion Officer on the staff of the Commander, Coast Guard Atlantic Area” and her collateral duties included “writing a new sexual assault response and prevention (SAPR) operational plan.” Gov’t Br. at 8. She also personally interacted with sexual assault victims. Gov’t Br. at 8. Further, she “disclosed that she had an older brother who was twice convicted for child molestation against his young daughter and step-daughter.” Gov’t Br. at 8. Finally, she opined that “if you are so drunk that you can’t remember giving consent, then you are too drunk to give consent,” thought she claimed that she could change her belief if she was instructed otherwise. Gov’t Br. at 9-10.
The defense challenged the member, asserting both actual and implied bias. The military judge denied both challenges, and the Government’s brief asserts that:
In support of her finding of no implied bias, the military judge ruled that “CDR K’s entire statements, taken in context, would not leave a reasonable member of the public” to doubt whether CDR K would be fair or impartial. “I listened to her entire answers, also from both counsel. She had every opportunity to say that she would not consider my instruction, especially based on the alcohol consumption. She did not state that.”
Gov’t Br. at 11 (citations to record omitted).
The appellant was convicted of conspiracy to obstruct justice, making a false official statement, two specifications of sexual assault, improper use of his military identification card, violating 18 U.S.C. § 499 by willfully allowing another person to have his military identification card, and three specifications of obstruction of justice, in violation of Articles 81, 120, and 134. He was sentenced to confinement for ten years, reduction to E-1, total forfeitures, and a bad-conduct discharge. The Coast Guard Court of Criminal Appeals rejected the appellant’s challenge of the military judge’s denial of the member challenge.
“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) (quoting United States v. Armstrong, 54 M.J. 51, 53 (C.A.A.F.2000)). “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, however, “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).
Last term CAAF addressed member bias in a number of cases. In United States v. Peters, 74 M.J. 31 (C.A.A.F. 2015) (CAAFlog case page), the court emphasized that a military judge should err on granting a challenge based on implied bias, explaining that:
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.
74 M.J. at 34. It employed the same analysis in United States v. Castillo, 74 M.J. 39 (C.A.A.F. Feb. 12, 2015) (CAAFlog case page). Then, in United States v. Woods, 74 M.J. 238 (C.A.A.F. Jun. 18, 2015) (CAAFlog case page), the court unanimously agreed 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, again focusing the public’s perception of fairness in having the member as part of the court-martial panel.
The appellant’s argument in Rogers focuses on the specifics of the military judge’s ruling regarding implied bias in CDR K. The appellant’s brief asserts that:
Rather than analyzing how the public would perceive CDR K’s answers, she reiterated that CDR K herself disclaimed bias and agreed to follow the military judge’s instructions. While this is relevant to actual bias – which was also raised by the defense – it does not address the problem of public perception.
App. Br. at 8. The Government’s response is to emphasize the deference afforded the judge who actually rules on the challenge:
Appellant claims that “the military judge recited the test for implied bias, yet she failed to apply it appropriately.” Appellant’s Br. at 8. Apparently, the inappropriate application was declining to grant the defense challenge, as the military judge explicitly stated that “I believe that her entire statements, taken in context, would not leave a reasonable member of the public doubt as to the fairness of her impartiality.” The military judge’s actions during voir dire, a process which can never be fully replicated in a cold appellate record, should be given proper deference because she applied the liberal grant mandate.
Gov’t Br. at 17-18 (citation to record omitted). Yet the Government’s brief also acknowledges that the challenge of CDR K was “a ‘close call.'” Gov’t Br. at 17 (quoting record). Considering recent precedent, this seems to be a major concession by the Government.
Ultimately, the Government claims to focus on the totality of the circumstances:
While it is appropriate to consider the totality of circumstances during CDR K’s voir dire when considering an implied bias challenge, the mere piling of nonmeritorious claims does not transpose them into one meritorious claim. Appellant has failed to show that CDR K’s experience with sexual assault, personal experiences with both people who have been accused of and the victim of sexual assault crimes, and her views on consent amount to implied bias. Even when taken together, the three issues do not meet the Appellant’s burden.
Just as a member of the public would not find bias if a university planner— charged with a plan to improve lighting, placing emergency call boxes, and improving access controls of a university’s campus in an effort to prevent sexual assault and other crimes—were to sit on a jury involving a sexual assault, here, too, CDR K’s collateral planning position is no cause for concern. Moreover, CDR K provided thoughtful and candid responses throughout voir dire. Consequently, the military judge found CDR K’s statements “would not leave a reasonable member of the public” to doubt whether she would be fair or impartial. Because the military judge sits in the best position to evaluate the credibility of a prospective panel member, CDR K’s unequivocal statements of impartiality should carry significant weight.
Gov’t Br. at 37-38 (the university planner analogy does not appear elsewhere in the Government’s brief). In a reply brief the appellant asserts that the Government ignores the totality of the circumstances:
The Government urges this Court not to consider the cumulative effect of CDR K’s life experiences. (Appellee’s Brief at 37.) This is counter to law and common sense.
Reply Br. at 6.
The military judge’s ruling on the challenge of CDR K is problematic because – as quoted above – the military judge found no implied bias challenge by referencing CDR K’s ability to follow instructions (a factor in actual bias). Furthermore, it’s easy to see CDR K as an inappropriate member for this panel considering her background and experiences. Accordingly, CAAF’s review of this case will likely be highly fact-specific.
• CGCCA opinion
• Blog post: CAAF grants review of an implied bias challenge of a member
• Appellant’s brief
• Appellee’s (Government) brief
• Appellant’s reply brief
• Blog post: Argument preview