United States v. Townsend , 2008 CAAF LEXIS 493 ( 2008 )

UNITED STATES, Appellee
v.
Laprie D. TOWNSEND, Master-at-Arms Second Class
U.S. Navy, Appellant
No. 07-0229
Crim. App. No. 200501197
United States Court of Appeals for the Armed Forces
Argued December 5, 2007
Decided February 5, 2008
ERDMANN, J., delivered the opinion of the court, in which
EFFRON, C.J., and STUCKY and RYAN, JJ., joined. BAKER, J.,
filed a separate dubitante opinion.
Counsel
For Appellant: Lieutenant Anthony Yim, JAGC, USNR (argued).
For Appellee: Major Brian K. Keller, USMC (argued); Commander
Paul C. LeBlanc, JAGC, USN, and Captain Roger E. Mattioli, USMC
(on brief).
Military Judge: John W. Rolph
This opinion is subject to revision before final publication.
United States v. Townsend, No. 07-0229/NA
Judge ERDMANN delivered the opinion of the court.
Master-at-Arms Second Class Laprie D. Townsend was
convicted at a general court-martial of attempted unpremeditated
murder and reckless endangerment as a result of an incident in
which he discharged a firearm at a vehicle containing several
occupants. He was sentenced to a dishonorable discharge and ten
years of confinement. The convening authority approved the
sentence, but reduced the period of confinement to six years.
The United States Navy-Marine Corps Court of Criminal Appeals
affirmed the findings and the sentence as reduced by the
convening authority. United States v. Townsend, No. NMCCA
200501197, 2007 CCA LEXIS 23, at *23-*29 (N-M. Ct. Crim. App.
Jan. 12, 2007). We granted Townsend’s petition to determine
whether the military judge abused his discretion when he denied
Townsend’s challenge for cause against one of the members of the
court-martial panel.
Townsend claims that his challenge to LT B should have been
granted on the basis of implied bias, as a reasonable observer
would perceive that LT B’s presence as a member rendered the
trial unfair. Based on the facts of this record, we conclude
that the military judge did not abuse his discretion. None of
the reasons offered in support of the challenge, either alone or
cumulatively, result in the public perceiving that Townsend
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received less than a court of fair, impartial members. We
therefore affirm the decision of the Court of Criminal Appeals.
Background
Townsend requested trial by officer and enlisted members.
LT B was among the members assembled for the court-martial.
Following group voir dire, each court member was individually
voir dired. Questioning of LT B by both the trial counsel and
the defense counsel focused, in part, on LT B’s legal training
and professional aspirations, his relationship with his police
officer father, his view of law enforcement personnel, and his
opinion of defense counsel.
LT B indicated that he had taken the “Non-Lawyer Legal
Officer Course” at the Naval Justice School where he received
“just basics” on legal defenses which included the concept of
self-defense. At the time of trial he was enrolled in a
criminal law class as a night law student. Asked what type of
lawyer he wanted to be, LT B responded that he wanted to become
a criminal prosecutor. LT B indicated that he desired to be a
prosecutor as “public service”, “putting the bad guys in jail”,
and “keeping the streets safe.”
Nonetheless, LT B stated that he was not biased toward the
Government’s case and that he could “absolutely” set aside
anything he may have learned elsewhere and follow the
instructions as given by the military judge. He assured the
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military judge that his desire to become a criminal prosecutor
did not change his belief that Townsend was innocent until
proven guilty beyond a reasonable doubt and he would be able to
follow the military judge’s instructions if they differed from
information he had learned at school. LT B affirmed that he
would listen to both the prosecution and defense and hold the
Government to its burden of proof. He said he had not prejudged
Townsend.
Following up on questions about why LT B wanted to be a
prosecutor, defense counsel asked LT B, “[W]hat are your
opinions of defense counsels?” LT B responded that he had a
“mixed view.” Specifically, he had high regard for military
defense counsel who were military officers and individuals of
high ethical and moral standards. However, he had “lesser of a
respect for some of the ones you see on TV, out in the civilian
world.” This reference to television lawyers arose from the
fact that LT B was a regular viewer of the television show Law
and Order.
LT B said that his father, with whom he was close, was a
member of the law enforcement community. As a result, LT B had
a “healthy respect for law enforcement, and people in
authority.” Asked if he would hold the testimony of law
enforcement personnel in higher esteem than other witnesses, LT
B responded that he would try to be objective about everything.
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If he had a “gut decision” to make, he stated that: “a good
cop, [if] he’s had a good record, you know, [was] well
respected, that -- that would definitely give some credibility
to their testimony.” Asked if he could follow the military
judge’s instructions with respect to weighing the credibility of
law enforcement as he would any other witness, LT B responded,
“Yes.” LT B stated that a witness’s status as a law enforcement
officer would not automatically cause him to believe or
disbelieve that individual.
Townsend’s defense counsel challenged LT B and one other
panel member for cause. The military judge summarily granted
the challenge to the other member and asked for argument on the
challenge against LT B. Citing Rule for Courts-Martial (R.C.M.)
912(f), Townsend’s counsel argued that LT B’s beliefs had been
“hardened” in regard to criminal cases by his legal training and
desire to be a prosecutor, and by his relationship with his
father. The defense counsel noted that LT B’s respect for law
enforcement officers would cause him to defer to the officers’
credibility and when combined with LT B’s express desire to “put
the bad guys away,” would cast doubt on his impartiality.
Finally, the detailed defense counsel noted that LT B had
expressed a general disdain for defense counsel in the civilian
world and that defense counsel in general “troubled him in some
regard.”
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The trial counsel responded that LT B had indicated without
hesitation that he could be impartial and would apply the law as
instructed upon by the military judge. With respect to
assessing the credibility of law enforcement officers, the trial
counsel noted LT B’s statement that he would judge a law
enforcement officer’s credibility by the same criteria he would
apply to any other witness. Finally the trial counsel
emphasized that LT B’s answers were genuine and sincere and that
LT B indicated he would follow the military judge’s instructions
regardless of his desire to be a criminal prosecutor.
The military judge denied the challenge for cause:
I do want to state that I found him to be extremely
genuine and sincere in his responses. The fact that
he is in Law School and desires to be a prosecutor is
–- is not, in itself, a basis for challenge. He made
it very clear that he would listen to all the
evidence, that he didn’t have a particular slant one
way or the other in regard to the prosecution or the
defense in this case, that he understood the
presumption of innocence, and the burden of proof
beyond a reasonable doubt, and I’m confident, in what
I observed of this young officer’s demeanor, that he
is legitimately sincere and serious about his role at
this court-martial, and therefore I will deny that
challenge for cause.
Defense counsel then used his peremptory challenge to remove a
different panel member thereby preserving his appeal of the
denial of the challenge for cause to LT B. See R.C.M.
912(f)(4).
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Discussion
“An accused is entitled to a trial by members who are
qualified, properly selected, and impartial.” United States v.
Moreno, 63 M.J. 129, 132 (C.A.A.F. 2006) (citing Article 25,
UCMJ, 10 U.S.C. § 825 (2000)). R.C.M. 912 encompasses
challenges based upon both actual bias and implied bias. United
States v. Clay, 64 M.J. 274, 276 (C.A.A.F. 2007); United States
v. Ai, 49 M.J. 1, 4-5 (C.A.A.F. 1998). Townsend does not allege
actual bias. While he argued that voir dire revealed potential
grounds for actual bias, he conceded that LT B had been
successfully rehabilitated.
R.C.M. 912(f)(1)(N) provides a challenge where it appears
an individual “[s]hould not sit as a member in the interest of
having the court-martial free from substantial doubt as to
legality, fairness, and impartiality.” Implied bias exists
when, despite a disclaimer, most people in the same position as
the court member would be prejudiced. United States v.
Napolitano, 53 M.J. 162, 167 (C.A.A.F. 2000); United States v.
Warden, 51 M.J. 78, 81 (C.A.A.F. 1999); United States v.
Daulton, 45 M.J. 212, 217 (C.A.A.F. 1996). To test whether
there is substantial doubt about the fairness of the trial, we
evaluate implied bias objectively, “through the eyes of the
public,” reviewing “the perception or appearance of fairness of
the military justice system.” United States v. Schlamer, 52
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United States v. Townsend, No. 07-0229/NA
M.J. 80, 92-93 (C.A.A.F. 1999); United States v. Dale, 42 M.J.
384, 386 (C.A.A.F. 1995). Our inquiry is to determine whether
the risk that the public will perceive that the accused received
something less than a court of fair, impartial members is too
high. United States v. Wiesen, 56 M.J. 172, 176 (C.A.A.F.
2001).
Although we review issues of implied bias for abuse of
discretion, the objective nature of the inquiry dictates that we
accord “a somewhat less deferential standard” to implied bias
determinations of a military judge. United States v. Armstrong,
54 M.J. 51, 54 (C.A.A.F. 2000); United States v. Napoleon, 46
M.J. 279, 283 (C.A.A.F. 1997). In addition, we have held that
military judges should apply a liberal grant mandate in ruling
on challenges asserted by an accused. United States v. White,
36 M.J. 284, 287 (C.M.A. 1993); see also Clay, 64 M.J. at 277;
United States v. James, 61 M.J. 132, 139 (C.A.A.F. 2005); United
States v. Downing, 56 M.J. 419, 422 (C.A.A.F. 2002). Where a
military judge does not indicate on the record that he has
considered the liberal grant mandate in ruling on a challenge
for implied bias, we will accord that decision less deference
during our review of the ruling. See Clay, 64 M.J. at 277;
United States v. Hollings, 65 M.J. 116, 119 (C.A.A.F. 2007);
United States v. Terry, 64 M.J. 295, 296 (C.A.A.F. 2007).
Consequently, “we will overturn a military judge’s ruling on an
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United States v. Townsend, No. 07-0229/NA
accused’s challenge . . . where he clearly abuses his discretion
in applying the liberal grant mandate.” Moreno, 63 M.J. at 134.
Before this court Townsend renews his claims that his trial
would be perceived as unfair because LT B: had a close
relationship with his law enforcement father; was a law student
at the time of trial with a career goal of being a criminal
prosecutor; was disposed to give a law enforcement officer’s
testimony more credibility than he would give to other
witnesses; and did not hold defense attorneys in high regard.
Townsend argues that the military judge should not be accorded
much deference because he did not indicate that he considered
either implied bias or the liberal grant mandate in his ruling.
The Government responds that the record does not support a
claim that any of the reasons put forward by Townsend raise
implied bias and argues that Townsend has failed to show that
the public would harbor any misgivings about the fairness of his
trial. Additionally, the Government urges that there is nothing
to overcome LT B’s many assurances that he would follow the
instructions of the military judge and serve as a fair,
impartial court member.
Initially, we agree with Townsend about the deference we
should accord to the military judge’s ruling. While the
military judge assessed the credibility and demeanor of LT B on
the record, the ruling denying the challenge of LT B did not
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United States v. Townsend, No. 07-0229/NA
reflect whether he considered either implied bias or the liberal
grant rule.1 Therefore, we accord less deference to his ruling
than we would to one which reflected consideration of implied
bias in the context of the liberal grant mandate. See Clay, 64
M.J. at 277 (“A military judge who addresses implied bias by
applying the liberal grant mandate on the record will receive
more deference on review than one that does not.”).
Law enforcement personnel are not per se disqualified from
service as court members. See Dale, 42 M.J. at 386. If status
as a law enforcement officer is not a disqualification, it
follows that a mere familial relationship with a member of the
law enforcement community creates no greater basis upon which to
disqualify a member than law enforcement status itself. We
discern nothing in the record to suggest that LT B was hardened
in his views on criminal law by virtue of his respect for his
father or his father’s background in law enforcement.
1
The military judge did at one point indicate that he was
granting a Government challenge, in part, by applying the
liberal grant mandate. We note that this case was tried prior
to our decision in United States v. James, 61 M.J. 132, 139
(C.A.A.F. 2005), in which we found “no basis for application of
the ‘liberal grant’ policy when a military judge is ruling on
the Government’s challenges for cause.” Although the military
judge here was not aware of our holding in James, we do not
consider his single reference to the liberal grant mandate in
the context of a Government challenge to be a reflection that he
gave similar consideration to the mandate when ruling on
Townsend’s challenge against LT B.
10
United States v. Townsend, No. 07-0229/NA
While the voir dire reflected that LT B had respect for law
enforcement, that respect did not translate into any objectively
discernable bias. Although LT B indicated that he would afford
a certain amount of credibility to a police officer with a good
record, his view was not so inflexible that it would not yield
to the military judge’s instructions on credibility. In fact,
evidence of a police officer’s record, good or bad, would be a
factor that any court member could use along with his or her
personal observation of the witness and all other evidence of
record in determining credibility. Thus, LT B’s statement is
not an indication of a bias or prejudice that would not yield to
proper instruction or create an appearance of unfairness in this
trial.
A similar conclusion can be derived as to LT B’s enrollment
in law school and his desire to become a prosecutor. Lawyers
are not per se disqualified as court-martial members unless they
have served in one of the capacities explicitly set forth as a
disqualification in the Uniform Code of Military Justice (UCMJ).
See Article 25(d)(2), UCMJ; R.C.M. 912(f); see also United
States v. Hedges, 11 C.M.A. 642, 643, 29 C.M.R. 458, 459 (1960).
It follows that one who only aspires to become a lawyer is not
disqualified and presents no greater threat to the fairness of a
proceeding than does a court member who is a fully trained and
licensed attorney.
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While LT B stated that following law school he would like
to become a prosecutor, the record shows that he was aware of
the proper role of a court member and would adhere to that role.
He specifically said that he would cast aside any legal notions
he developed from his legal education and would strictly follow
the instructions of the military judge. Even setting aside
these disclaimers, we see no reasonable basis upon which to
conclude that LT B’s status as a law student or his career
aspirations presented a substantial basis to question the
fairness of this proceeding.
Lastly, we note that the claim that LT B did not like
defense lawyers or did not hold defense lawyers in high regard
is not an accurate reflection of LT B’s responses during
individual voir dire. The record reflects that LT B expressed
high regard for military defense counsel as officers and persons
of high integrity. It further reflects that Townsend was
represented by a military defense counsel in this case rather
than a civilian defense counsel. Even his remarks about
civilian defense counsel were cast in the context of how
television portrayed civilian defense counsel on the Law and
Order television program. These remarks cannot be reasonably
interpreted to imply that LT B disliked licensed, professional
defense counsel, military or civilian.
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The record reflects that the factors asserted as a basis
for implied bias are not disqualifying or egregious and would
not, individually or cumulatively, result in the public
perception that Townsend received something less than a court-
martial of fair and impartial members. In fact, a
dispassionate, objective review of this record reflects quite
the opposite. LT B understood and appreciated the role of a
court member, including his obligation to apply the law as
instructed upon by the military judge and his obligation to
remain unbiased. We believe a reasonable observer, considering
the record as a whole, would have harbored no questions about LT
B’s neutrality, impartiality, and fairness.
However, appellate defense counsel goes on to argue that we
should find implied bias regardless because there is a point at
which numerous efforts to rehabilitate a member will themselves
create a perception of unfairness in the mind of a reasonable
observer. In other words, appellate defense counsel posits the
question, “How much is too much?” The question has merit within
the context of challenges for implied bias.
It might be possible that a particular member of a court-
martial would require rehabilitation to such an extent that the
rehabilitation itself would give rise to reasonable questions
about the fairness of the proceeding if that member were to
remain on the panel. The need to engage in extensive
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United States v. Townsend, No. 07-0229/NA
rehabilitation of a potential court member may present the very
type of “close” situation that supports application of the
liberal grant mandate. Clay, 64 M.J. 277 (“[I]n close cases
military judges are enjoined to liberally grant challenges for
cause.”). This, however, is not that situation. This was not a
case in which an extensive rehabilitation of LT B was required
or pursued. During voir dire, each side questioned LT B only
once. Trial counsel questioned LT B followed by questioning
from defense counsel. There was no extensive back and forth
effort to undermine and then rehabilitate LT B’s qualifications
to sit as a member of the court. This straightforward
individual voir dire was dramatically different than a repeated
effort to rehabilitate LT B which might have created substantial
doubts about the fairness of this proceeding.
None of the factors urged by Townsend serve to disqualify
LT B from serving as a court member and they would not cast
doubt in the eyes of the public upon the fairness of this court-
martial. The record reflects that LT B understood his role as a
court member and that he would follow the instructions of the
military judge. Examining the cumulative impact of LT B’s
disclaimers in light of the liberal grant mandate, we conclude
that this is not a close case where failure to apply the liberal
grant mandate is fatal. The military judge did not abuse his
discretion in denying the challenge against LT B.
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Decision
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is affirmed.
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BAKER, Judge (dubitante):
The liberal grant mandate exists for cases like this. As
the majority opinion points out, there are no inherently
disqualifying factors presented in the voir dire testimony of LT
B, but there certainly are many candidates.
First, LT B expressed negative views of civilian defense
attorneys, but not military counsel. Second, LT B admitted that
he would give more credibility to a law enforcement officer,
that he had a “gut” feeling to side with a law enforcement
officer in a close case. Third, it was LT B’s aspiration to be
a prosecutor, in order to “put [] the bad guys in jail.”
Additionally, two other factors, which would not normally
constitute implied bias, must be considered in the context of
these preceding statements by LT B. First, in pursuit of his
goal of being a prosecutor, LT B was a part-time law student
studying criminal law, including theories of self-defense (some
of which would form the foundation of Appellant’s argument).
Finally, LT B stated during voir dire that his father -- with
whom he had a close, respectful relationship -- was a law
enforcement officer.
Against these potentially disqualifying facts must be
weighed those factors that argue against excusal. First, the
Appellant himself concedes that LT B’s participation as a member
resulted in no actual bias, and there is no evidence that LT B’s
United States v. Townsend, No. 07-0229/NA
bias -- if such existed -- affected the case. Second, the
military judge gave an instruction that members were not to
consider any outside sources in reaching their findings. Third,
there was a lengthy voir dire of LT B, during which he stated
that he harbored no preconceptions concerning the case and made
all the correct rehabilitative statements. Viewed in the
abstract from the record, these assurances by LT B seem oblique
and dubious;1 nonetheless, the military judge found them to be
sincere and genuine.
1
Consider the following exchange during voir dire between LT B
and the Assistant Trial Counsel:
ATC: . . . In this case the government is going to present
testimony from several members of the Naval Criminal
Investigative Service, and obviously they’re members of the
law enforcement community. Will you hold their testimony
in higher regard, meaning more likely to believe what they
say simply because they’re NCIS Agents, or will you weigh
their testimony, just like you’ll weigh the testimony of
any other witness who may testify?
LT B: Well, to be honest with you, that’s a -- that’s a --
I think that’s not quite a black and white answer, and what
I mean is, of course we all try and be objective when we
sit here, and we weigh everything we hear as -- as an
objective person.
But I think if -- if -- if you had a gut decision to make,
one way or the other, I think that the fact that they were
-- had a law enforcement person with a good record that
might give you a little bit more cut to the other way, if
it was too close, and you weren’t quite sure. But -- well,
he’s -- he’s a -- he’s a good cop, he’s had a good record,
you know, he’s well respected, that -- that would
definitely give some credibility to their testimony, I
would think.
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At some point, a member of the public, as well as an
accused, might begin to wonder why it was necessary for the
government to rehabilitate this member of the panel not once,
but several times on ten different subjects,2 however sincere the
responses. An outside observer might well wonder whether this
member really felt differently about military and civilian
defense counsel, after hearing LT B’s statements that his gut
told him to side with law enforcement and he wanted to be a
prosecutor so he could “put [] the bad guys in jail.” As with
the trees at Dolly Sods, the wind only blows in one direction.
Put more directly, it is obvious to any observer, judicial or
public, that this member was in outlook “pro-prosecution”, which
is not necessarily the same as saying that LT B was biased.
Therefore, in my view this case presented an easy trial
level call to dismiss the member and avoid any issues of implied
ATC: Okay. If the military judge were to instruct you
that you have to use the same factors when weighing the
credibility of that NCIS Agent as you do any other witness,
could you follow those instructions, and use those same
factors when deciding on the credibility of an NCIS Agent?
LT B: Yes.
2
I.e., Extrajudicial knowledge of the law, law school
attendance, desire to be a prosecutor, knowledge of forensic
science, participation in a previous judicial proceeding,
relationship to a law enforcement officer causing bias in favor
of prosecution, gun ownership, views of criminal defense
attorneys, willingness to give sentence accused to life
imprisonment, and perception of witnesses testifying in exchange
for a lower sentence.
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bias on appeal. Why would a military judge take a chance,
where, in fact, the accused has objected to the member sitting
on his court and preserved the issue? Why take the chance that
an appellate court will disagree and reset the clock after years
of appellate litigation? Three considerations inform this view.
First, in a system of panel selection where the convening
authority selects the pool of members and the parties only have
one peremptory challenge, application of the liberal grant
concept helps to address questions that may linger in public
perception regarding the appearance of bias in the selection of
members.
Second, this court-martial took place at Norfolk Naval
Station. There is no indication that there were national
security reasons why the potential pool of members was small,
perhaps necessitating a “tie goes to the government” approach on
implied bias.
Third, appellate review of member challenges is an
ungainly, if not impractical, tool to uphold and reinforce the
importance of Rule for Courts-Martial (R.C.M.) 912 in military
justice practice. Among other things, appellate courts do not
have the benefit of hearing the tone of a response or to observe
the demeanor of voir dire responses. Further, where matters of
appearance and nuance rather than clear error are involved,
courts might well be hesitant to reset the clock. And yet, from
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within the system, it may be particularly hard to discern the
extent to which member selection is viewed in public circles as
a weak link in the otherwise strong chain of military justice.
Hence, trial judges are repeatedly enjoined at the appellate
level to consider questions of implied bias and to do so on the
record.
For these reasons, I think it was an easy call at the trial
level to dismiss LT B from the member pool, but a harder call to
do so on appeal as a matter of law. The government should not
have had to work so hard to rehabilitate a member whose outlook
was fundamentally with the prosecution. At the same time, this
was a close case as a matter of law (as opposed to practice),
and I was not present to evaluate the tone, content, and
sincerity of the member’s responses, all of which inform an
implied as well as actual bias challenge. Indeed, the nature of
LT B’s responses conveys conscientious honesty. It is the
responsibility of the military judge -- and not appellate courts
-- to make determinations based on such ineffable factors.
Nonetheless, LT B’s consistently equivocal responses to the
questions cited above leave me with doubts. As a result, I
reluctantly concur.
5