CAAFlog » September 2014 Term » United States v. Castillo (AR)

CAAF decided the Army cases of United States v. Peters, 74 M.J. 31, No. 14-0289/AR (CAAFlog case page) (link to slip op.), and United States v. Castillo, 74 M.J. 39, No. 14-0457/AR (CAAFlog case page) (link to slip op.), on Thursday, February 12, 2015. Both cases presented issues questioning whether the military judges erred in denying defense challenges of members for cause based on implied bias. CAAF finds error in Peters and reverses the convictions and the decision of the Army CCA, but the court finds no error in Castillo and affirms the convictions and the CCA.

Chief Judge Baker writes for the court in both cases. Judges Stucky and Ryan both write separately; both dissent from the finding of error in Peters, and both concur with the result in Castillo.

CAAF has made it clear that “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)). But those separate tests receive different degrees of deference on review:

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. Observation of the member’s demeanor may inform judgments about implied bias; however, implied bias is reviewed under an objective standard, viewed through the eyes of the public.As this Court has often stated, at its core, implied bias addresses the perception or appearance of fairness of the military justice system.

United States v. Downing, 56 M.J. 419, 422 (C.A.A.F. 2002) (marks and citations omitted) (emphasis added). It is the application of this special deference that splits CAAF in Peters, and is at the heart of the court’s strained unanimity in Castillo.

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Audio of yesterday’s oral arguments is available at the following links:

United States v. Peters, No. 14-0289/AR (CAAFlog case page): Oral argument audio.

United States v. Castillo, No. 14-0457/AR (CAAFlog case page): Oral argument audio.

CAAF will hear oral argument in the Army case of United States v. Castillo, No. 14-0457/AR (CAAFlog case page), on Tuesday, October 21, 2014, after it hears oral argument in the Army case of United States v. Peters, No. 14-0289/AR (CAAFlog case page). Like Peters, Castillo presents CAAF with an issue regarding the test for implied bias in a potential member of a court-martial:

Whether, under the totality of the circumstances, the military judge erred in denying the defense implied bias challenge against LTC DS in light of his personal experience as a sexual assault victim, his direct supervisory role over two other members, his ongoing reliance on the trial counsel for military justice advice, the presence of four other members who also received military justice assistance from the trial counsel, and the fact that the panel was selected exclusively from appellant’s brigade.

Of note, this is one of two cases on CAAF’s docket this term involving service members named Castillo. This case is from the Army. The other case is from the Navy and involves the self-reporting requirement: United States v. Castillo, No. 14-0724/NA (CAAFlog case page).

Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of member with enlisted representation, of of rape and assault consummated by a battery, in violation of Articles 120 and 128. He was sentenced to confinement for two years, reduction to E-1, total forfeitures, and a dishonorable discharge. The convening authority approved 23 months of the adjudged two years of confinement, and approved the rest of the sentence. The Army CCA summarily affirmed the conviction.

At trial Appellant’s defense counsel challenged six members for cause based on the fact that the trial counsel (prosecutor) “served with and provided military justice assistance to each of these members.” App. Br. at 3. One of these members was Lieutenant Colonel (LTC) DS. He was also challenged on the additional bases of his “personal experience as a child molestation victim and his civilian sexual assault training.” App. Br. at 4. The military judge granted one of the challenges for a different reason but denied the other five, and the Defense used its preemptory challenge on a different member. That left LTC DS and three other challenged members as part of the court-martial panel. Of those other three, LTC DS was the commander and direct supervisor of two.

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Yesterday CAAF granted review in the Army case of United States v. Castillo, No. 14-0457/AR, on the following issue:

Whether, under the totality of the circumstances, the military judge erred in denying the defense implied bias challenge against LTC DS in light of his personal experience as a sexual assault victim, his direct supervisory role over two other members, his ongoing reliance on the trial counsel for military justice advice, the presence of four other members who also received military justice assistance from the trial counsel, and the fact that the panel was selected exclusively from appellant’s brigade.

The Army CCA heard oral argument in this case on January 22, 2014, (as mentioned in this TWIMJ post) but I can’t find an opinion on the CCA’s website.

This is the third member bias issue granted by CAAF in the past six weeks. The others are United States v. Peters, No. 14-0289/AR (mentioned here), which was granted on June 3, and United States v. McFadden, No. 12-0501/AF (last mentioned here), which was granted on April 24.

CAAF’s last significant member bias opinion was in the certified Marine Corps case of United States v. Nash, 71 M.J. 83 (C.A.A.F. 2012) (CAAFlog case page). In that case the NMCCA set aside the findings after concluding that a member’s question to a witness indicated implied bias. The Navy JAG certified the case to CAAF, questioning whether the CCA conducted the proper analysis. CAAF agreed that the CCA got it wrong, finding actual bias where the CCA found only implied bias. CAAF then affirmed the CCA’s action that set aside the findings.

In my opinion analysis of Nash I commented:

During the oral argument in this case (which we did not cover), there was a fair amount of discussion of the need to simplify the tests for member bias. Perhaps the court’s simple resolution of this case signals a preference for a liberal application of the test for actual bias (a, uh, “liberal grant”). But more substantive changes in the law will have to wait for a more complicated case.

Perhaps that time has come.