CAAF decided the Air Force case of United States v. Dockery, 76 M.J. 91 No. 16-0296/AF (CAAFlog case page) (link to slip op.) on Tuesday, February 14, 2017. The court finds that the military judge committed error when he granted the prosecution’s challenge of a member, but that the error did not prejudice the appellant’s rights. CAAF reverses the decision of the Air Force CCA in part, but it affirms the findings and sentence.

Chief Judge Erdmann writes for the court, joined by Judge Stucky and Judge Ryan. Judge Sparks concurs, joined by Judge Ohlson.

Master Sergeant (E-7) Dockery, was a black man accused of sexual assault of a white woman. 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. One was quickly excused by agreement of the parties. The other was questioned in voir dire on the issue of race, leading to a prosecution challenge of the member on the basis that “she had a bias in [the accused’s] favor along racial lines.” Slip op. at 5 (quoting record). The military judge granted the challenge, finding (with little explanation) that “there is implied bias.”

Dockery was convicted and the Air Force CCA affirmed. CAAF then granted review of two issues:

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).

Finding error in the grant of the challenge, Chief Judge Erdmann explains that CAAF “do[es] not believe that MSgt LW’s inclusion on the court-martial panel would have caused the public to perceive unfairness within the military justice system.” Slip op. at 11. But he finds no prejudice – and therefore no basis for reversal – because “Dockery has neither alleged that any of the panel members who ultimately tried him were biased nor has he suggested that their presence on the panel created substantial doubt as to the court-martial’s legality, fairness and impartiality.” Slip op. at 14 (marks and citation omitted).

The concurring opinion of Judge Sparks, however, reveals that there is significant discomfort with the prosecution’s objection:

Although the Government is entitled to a fair opportunity to present its case to unbiased members, the issue of the appearance of fairness in a criminal proceeding is generally understood as a reference to the appearance of fairness to the accused. After all, it is the accused’s constitutional right to a fair trial that is most often at issue.

Con. op. at 2 (emphasis in original).

CAAF’s finding of error makes no new law, but its analysis of the prejudice issue is significant for this point:

Dockery contends that the military judge’s implied bias ruling was erroneous and has asked us to reverse that ruling. However, asking this court to reverse a ruling of implied bias does not place Dockery in the same position as an appellant who has brought a successful implied bias challenge, and therefore does not eliminate the need for Dockery to establish that he was prejudiced from the error. Dockery has not based his request for a reversal on the presence of implied bias. To the contrary, Dockery’s appeal is based on just the opposite – that implied bias did not exist.

Dockery argues that failing to include MSgt LW was error – but he does not argue that any member on that panel was impliedly biased. This places Dockery in a much different position than an appellant in a typical implied bias case where the issue is the inclusion of an impliedly biased member, which could raise doubt about the fairness of the trial in the public’s mind. As the government has noted, there is a difference between the failure to remove a biased member who sat on a panel that tried an accused, and the erroneous removal of an unbiased member from a panel, where there is no challenge to the ultimate makeup of the panel.

Slip op. at 12-13 (emphases in original). This analysis follows the distinction made in the Air Force Appellate Government Division’s brief between a panel tainted by the failure to remove a biased member, and one not tainted by the mere absence of an additional unbaised member. That distinction is, ultimately, significant enough to overcome the questionable appearance raised by the prosecution’s challenge that was predicated on notions of favorable bias along racial lines.

Case Links:
AFCCA’s opinion
Appellant’s brief
Appellee’s (Government) brief
Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

9 Responses to “Opinion Analysis: No prejudice in improperly granting the prosecution challenge of a member in United States v. Dockery, No. 16-0296/AF”

  1. Isaac Kennen says:

    One might ask how the court-martial had jurisdiction when it was lacking one of its duly-appointed members due to government error.  I would have thought having all of the lawfully-appointed and eligible-to-serve members present for the taking of evidence, deliberations, and voting, would have been a prerequisite for the court to have jurisdiction.
     
    A cynic might wonder whether the holding of this decision is really that having a complete panel is not necessary in a very particular class of cases: where two white executive branch officers (the prosecutor and the judge) act together to (erroneously) remove the last remaining black member of a court martial after that member had the nerve to say, out loud, that she thought it would be a good idea to have at least one person of her race sit on the court given that it was trying a black man accused of raping a white woman. 

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

    Was there a Batson challenge?

  3. Zachary D Spilman says:

    Batson doesn’t apply to a challenge for cause. See slip op. at 7-8 n.2.

  4. Vulture says:

    Foster v. Chapman might be more appropriate.  https://www.supremecourt.gov/opinions/15pdf/14-8349_6k47.pdf.  CAAF is playing a game of chicken.

  5. k fischer says:

    I wonder if the challenged member was the only female on the panel as well.  I have found that having unbiased female members on the panel, many times, is actually beneficial to the Accused.  Women, particularly victims of legitimate violence, are often more cognizant of bs stories than are men.
     
    Seems like the panel members answers jive with ensuring the appearance of a fair trial.

  6. stewie says:

    I find it hard to believe the MJ couldn’t have simply asked this panel member if she could follow his/her instructions just like the myriad number of panel members who display gov-friendly implied bias and then get rehabilitated.
     
    I get CAAF’s argument, but the optics alone of kicking off the lone remaining AA without apparently an attempt at rehab and knowing how easily it gets rehabbed the other way is…problematic at best.

  7. Tstan says:

    Do any AF types know how many members ended up hearing the case?  I didn’t see that in the factual recitation in Appellant’s brief.  The Appellant might have claimed that he was prejudiced if a government friendly number ended up hearing the case because this challenge was granted– 6 vice 7, 9 vice 10, right?

  8. Vulture says:

    MJ: So it’s different than what you see on TV, and what you see in the movies on Netflix or Hulu. So for any number of reasons, me, as the military judge can excuse court members for a number of reasons.
    Maturity Panel Member: So the cases are not real, the participants, aren’t real, and the decisions aren’t final?
    MJ:  No, no.  This is definitely not the People’s Court.  This is real.
    Temperament Panel Member:  So its not like that Apprentice show.
    MJ:  Well, if we were in an Army Court at Ft. Bragg…  (snicker).  No, it’s not like a reality show.
    Enlisted Membership Member: So it’s not like the current session of the Bachelorette.
    MJ:  Now you are getting it.
     

  9. k fischer says:

    Vulture,
     
    I also wondered about the MJ’s instruction.  My question was why didn’t the military judge tell the panel member that “it’s not like civilian court where you must have 12 jurors.  The minimum number of panel members on this Court-martial could be 5, two of which would have to be enlisted.  Also, you do not need to vote unanimously for an acquittal.  If more than 1/3 of you vote not guilty, then the Accused must be acquitted.”
     
    That would have been far more relevant than discussing movies on Netflix or Hulu.