Argument Preview: What to do about a member’s race-based bias in favor of the accused in United States v. Dockery, No. 16-0296/AF
CAAF will hear oral argument in the Air Force case of United States v. Dockery, No. 16-0296/AF (CAAFlog case page), on Tuesday, October 25, 2016, after the argument in Fetrow. The case presents two issues involving a successful prosecution challenge of a member due to concerns about race-based bias in favor of the accused:
I. Whether the military judge erred by granting, over defense objection, the Government’s challenge for cause against MSgt LW.
II. Whether the Air Force Court of Criminal Appeals erred by finding that the military judge did not err, and by concluding that even if the military judge did err there was no prejudice, contrary to this court’s precedent in United States v. Peters, 74 M.J. 31 (C.A.A.F. 2015), United States v. Woods, 74 M.J. 238 (C.A.A.F. 2015), United States v. Nash, 71 M.J. 83 (C.A.A.F. 2012), United States v. Clay, 64 M.J. 274 (C.A.A.F. 2007), and United States v. Dale, 42 M.J. 384 (C.A.A.F. 1995).
The appellant, Master Sergeant (E-7) Dockery, “is an African-American man who was accused of raping a white female one evening after she had been drinking heavily.” App. Br. at 3. He was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of sexual assault in violation of Article 120(b) (2012) and adultery in violation of Article 134. He was sentenced to confinement for one year and reduction to E-4.
Two service members of African-American heritage were detailed to the court-martial: SMSgt DC (male) and MSgt LW (female). SMSgt DC knew Dockery and was identified as a potential defense witness, and so he was excused. That left MSgt LW, who “identified herself as black and Hispanic.” Gov’t Br. at 2. During voir dire she was asked whether she would want herself on the court-martial panel if she were the accused, and she responded:
I would think yes, be fair, not from nothing, but for some reason an African American person already got dismissed so I would think – not that it wouldn’t be – oh god – I would say yes. You would want – you would want somebody like me to be fair for both parties, to judge. I think that I will be fair, listening to all the facts either way.
App. Br. at 3; Gov’t Br. at 3. The prosecution then challenged MSgt LW, asserting “that she harbored actual bias against the government.” App. Br. at 5.
Elaborating on the challenge, the trial counsel said:
It was the comment she made about that seemed like she didn’t really intend for it to slip out, but she seemed to believe that – she expressed basically the fact that she kind of felt like she needed to protect the accused, or kind of battle for him because we’d already excused one black member. It seemed to indicate that she had a bias in his favor along racial lines.
Gov’t Br. at 4. The defense opposed the challenge.
The military judge granted the challenge, finding implied bias and ruling:
I’ve considered her responses. While I don’t find an actual bias, on the part – I think that was cleared up by my instructions to her, I do find that there is implied bias on the part of Master Sergeant [L.W.] from her utterance without any precipitating factors there, and so given that I find implied bias, the challenge against Master Sergeant [L.W.] is granted.
Gov’t Br. at 5. The military judge did not provide any more detail about his finding of implied bias.
On appeal at the Air Force CCA, Dockery asserted that it was error to excuse MSgt LW. The CCA acknowledged that “it would be constitutionally impermissible for a prosecutor to a remove a juror based only on an assumption the juror was predisposed to favor a defendant because of race.” United States v. Dockery, No. 38624, slip op. at 7 (A.F. Ct. Crim. App. Dec. 2, 2015) (link to slip op.) (citing United States v. Tulloch, 47 M.J. 283, 286 (C.A.A.F. 1997)). However, the CCA distinguished this case on the fact that “the individual juror injected the issue of race sua sponte.” Slip op. at 7. Accordingly, the CCA found no error. But the CCA also concluded that ” any error surrounding the challenge for cause was non-structural and can be tested for prejudice,” and it found the exclusion of MSgt LW to be harmless. Slip op. at 8.
CAAF then granted review.
“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) (CAAFlog case page) (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.” Nash, 71 M.J. at 88 (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).
“The military judge is also mandated to err on the side of granting a challenge. This is what is meant by the liberal grant mandate. Because the interests of justice are best served by addressing potential member issues at the outset of judicial proceedings in close cases military judges are enjoined to liberally grant challenges for cause.” United States v. Peters, 74 M.J. 31, 34 (C.A.A.F. 2015) (CAAFlog case page) (marks and citations omitted).
However, “given the convening authority’s broad power to appoint, [there is] no basis for application of the “liberal grant” policy when a military judge is ruling on the Government’s challenges for cause.” United States v. James, 61 M.J. 132, 139 (C.A.A.F. 2005).
In this legal context, Dockery’s brief attacks the prosecution challenge of MSgt LW as improperly based on race:
The government’s basis for challenge was it felt MSgt LW stated that because she was black she would fight harder for the Appellant. The defense objected to that basis, citing the inappropriate racial overtones and the lack of support for the challenge based on MSgt LW’s actual words. The government, thus, had every opportunity to defend itself, but instead it rested on the substance of the challenge it brought. The government must now defend that record on appeal, not some hypothetical record that would have occurred had the prosecution attempted to develop other proper bases for challenge before its improper challenge was erroneously granted.
App. Br. at 16.
The Government’s response invokes a tautology to support the absence of a racial basis for the challenge:
Since challenging a member on the basis of race is not a valid reason for a challenge for cause, presumably no trial judge would grant such a challenge. It therefore follows that if a valid challenge for cause on non-racial grounds exists and is granted by the military judge, there is per se no racial discrimination against the excused member.
Gov’t Br. at 12. Put differently, the Government suggests that the challenge was race-neutral because it was granted.
Yet the Government also asserts that the defense did not adequately preserve this issue:
Appellant forfeited such claims absent plain error by not objecting to the challenge for cause on the basis of Batson or the Equal Protection Clause during his court-martial. Appellant’s attempt to reframe trial defense counsel’s objection to the challenge for cause as an Equal Protection challenge is unconvincing. (App. Br. at 14-15.) Trial defense counsel asserted that MSgt L.W. had not demonstrated racial bias, but made no reference whatsoever to trial counsel or the government being racially biased. Merely voicing disagreement with a prosecutor’s reasons for challenging a court member is not sufficient to preserve a Batson claim for appellate review, and it should not be sufficient to preserve an Equal Protection claim in Appellant’s case.
Gov’t Br. at 13.
Ultimately, however, the Government finds an argument that the challenge was not based purely on MSgt LW’s race:
Trial counsel did not generalize that all African-American jurors distrust the judicial system. He did not merely assume that MSgt L.W. would be biased in favor of Appellant because they were of the same race. See Batson, 476 U.S. at 97. Instead, like the prosecutor in Perkins, he pointed to specific statements made during voir dire that led him to believe MSgt L.W. distrusted the court-martial proceedings based on SMSgt. D.C’s excusal and therefore might be biased in favor of Appellant and against the government. Moreover, as the Air Force Court found, MSgt L.W. “injected the issue of race sua sponte.” (J.A. at 7.).
Gov’r Br. at 22-23.
On the question of prejudice (the second granted issue), Dockery’s brief asserts that “when a member is not removed improperly should be treated the same as when a member is removed improperly with regard to prejudice.” App. Br. at 20. Put differently, because CAAF doesn’t test for prejudice when a military judge improperly denies a defense challenge for cause, Dockery asserts that it also shouldn’t test for prejudice when a military judge improperly grants a prosecution challenge for cause.
The Government, however, makes a convincing distinction:
Quite simply, the failure to remove a biased member from the panel has different ramifications than the improper excusal of a member. In the former instance, the panel is undoubtedly tainted by a biased member; there is no opportunity for the accused to be tried by an impartial panel. In the latter instance, an accused still has the opportunity to be tried by an impartial panel assuming the remaining panel members are impartial.
Gov’t Br. at 31-23.
It’s hard to avoid an uncomfortable feeling about the prosecution’s challenge in this case, and it’s easy to imagine how an objective observer would be suspicious of the motives behind removing MSgt LW from the panel. And considering that a court-martial panel is not a jury, and that race is not a proper criteria for either inclusion or exclusion of court-martial members, I suspect that for appearances sake alone CAAF will require the Government to make a compelling case in order to avoid reversal.