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.

Case Links:
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

9 Responses to “Argument Preview: United States v. Rogers, No. 16-0006/CG”

  1. Tami a/k/a Princess Leia says:

    You’d have to work hard to make me believe that someone was so drunk they can’t remember anything about the evening, that they were then also able to give consent.  I would have to be–that would have to be proven to me.

    A panel member who requires the defense to prove consent–Hmm, how is that not implied bias?

  2. Concerned Defender says:

    Clearly the panel member has a deep-seated intrenched bias, requiring the defense to sway her.  As Tami pointed out, burden shifting proving innocence onto the defense is inappropriate.  The MJ should have struck her for cause.   Why the TCs didn’t see this as an appellate issue and strike is also mind-boggling, from a practical standpoint but also from a fairness standpoint.  You want, or at least should want, fair minded individuals on the panel; not cool-aid drinking drones (which is not only unfair, but also raises these very issues and you can see your convictions overturned, making them a lot of wasted effort).  
    So the Military “Judge” (I use that term liberally since this “Judge” doesn’t seem to understand bias) left it on the shoulders of the Panel Member to say, “No your honor, I’m bias and I will not follow the law.”  Has that EVER happened in a Voir Dire?  I’m curious.  Has ANYONE seen a panel member say words to that effect, because I’d say that is a rare thing indeed; for a military member and panel member tell a Military Judge, generally of greater rank, “No Sir, I will not follow your instruction or the law…”  Seems entirely fiction that it would happen.  This “Judge” also seemed to get the application of actual vs implied bias mixed up as well.  I’d say this is a no-brainer, and clearly having a person with CDR K’s background sitting in judgment on a sex assault case would, in fact, “make a reasonable member of the public to doubt fairness and impartiality.” 
    CDR K “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.”  We all know that is code-military-speak for a very biased one-sided strategy to hold men generally as suspect and women as innocent victims, fawns in the headlights.  Rarely, if ever, are women held accountable for any of their conduct before, during, or after an “assault” regardless if their decisions were illegal, poor judgment, poor taste, or counter-intuitive.  It’s always 100% the “rapists” fault, even if there was legit mixed signals and mistake of fact.   So, allowing someone with that mentality to sit on the panel would be very damaging to a defense case, particularly where mistake of fact is at issue, or looking at the behavior of the alleged victim.
    The obvious other failure is that challenges are to be granted liberally, under the liberal challenge mandate.  It should have been enough for the Defense to raise the bias and the MJ simply to grant the challenge based on implied bias, which there clearly is given the Panel Member’s background.
    Yet another example of a failure of the MJs and TCs in the system….. shaking my head.  

  3. Tami a/k/a Princess Leia says:

    Also the issue of the alleged victim being married.

  4. DCGoneGalt says:

    I’ll probably be attacked but in my experience, the vast majority of TCs would not have opposed the defense challenge in this situation.  The experience of being involved in the policy alone would have likely led to the judge upholding the challenge but once it became evident that the member had access to accurate information but still gave a briefing that completely ignored the possibility of a blackout type situation . . . the TCs just avoid the appellate and appearance issues.
    If the standard is one of a “perception or appearance of fairness of the military justice system,” then it’s hard to even talk about these cases with a straight face.

  5. Peter E. Brownback III says:

    Concerned Defender – I have seen two brigade commanders and a battalion commander say that they are biased and could not follow the law. In all three cases, they wanted off the panel so they could go do their job.  My solution – bounce them and then make them sit in the courtroom all day and then send a copy of the transcript to the CA.
    In sexual assault cases I have had numerous soldiers tell me that X (themselves, wife, sister, mother, daughter, friend) were victims and that they are biased and could not fairly sit.  I don’t think this is at all uncommon.

  6. TC says:

    Peter E. Brownback III,
    What authority did you have to make a dismissed panel member sit in the courtroom all day?

  7. Peter E. Brownback III says:

    I was the military judge. Could he/they have refused the order?  I’m sure he/they could have, but I issued the order before dismissing them from the panel.
    Based on my knowledge of the SJAs and CAs involved, I was fairly certain that the CAs would have upheld the order.
    Theoretical and philosophical basis – commanders have a duty to serve as directed by the CA and gaming the system to get off a panel is not consistent with their oaths.

  8. k fischer says:

    I can’t wait until Brandon Wright is promoted to E7 and is selected for court martial duty and is challenged for cause.  So, if we are going off the public perception of a fair trial, should the CCAs consider the perception that the military is weak on sexual assault in light of the statutory standing that has been provided to complaining witnesses?  In other words, the public’s perception of fairness has been focused on whether the ACCUSED had a fair trial.  Well, do we now have to counterbalance the victims right to a fair trial in that calculus and determine that a member of the public would not deem it unfair to the victim if a kool aid drinking  SAPR person was seated on the panel?

  9. Concerned Defender says:

    @Peter Brownback, it’s apples and oranges.  With regard to someone who is a victim herself/himself or a close family member, these are canned Voir Dire questions and it’s no surprise that person can’t be impartial, regardless of their answer.  They universally get bounced, absent unusual circumstances.  I would certainly challenge that person, quite loudly, to the MJ.  As to an otherwise impartial BDE or BN Commander, who is just too busy to be there, well that’s a different story.  He is saying he can’t not because he can’t follow the law, he just doesn’t want to be there.  An MJ should not bend here, and should force the CDR to articulate why he can’t be fair or follow the law.  I’ve seen some heated back and forth where it’s obvious a panel member wants to shirk the duty but cannot articulate why he cannot be impartial.  That’s a case-by-case assessment.  Entirely different than a pro-SHARP individual who is surreptitiously trying to remain and not get bounced.  This is the bias the MJ must look for to prevent this exact scenario.  Cutting through the bullsnot to ensure a fair panel.  This is the hidden bias an MJ is required to be on the watch for; and in a case where the DC spots it and raises it, the MJ should have agreed.