United States v. Rome , 1998 CAAF LEXIS 18 ( 1998 )

Opinion of the Court

GIERKE, Judge:

A general court-martial composed of officer and enlisted members convicted appellant, contrary to his pleas, of attempted robbery in violation of Article 80, Uniform Code of Military Justice, 10 USC § 880. The adjudged and approved sentence provides for a bad-conduct discharge, confinement for 2 years, total forfeitures, and reduction to the lowest enlisted grade. The Court of Criminal Appeals affirmed the findings and sentence without opinion. Our Court specified the following issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN DENYING DEFENSE COUNSEL’S CHALLENGE FOR CAUSE OF LIEUTENANT COLONEL M.

We hold that the military judge abused his discretion.

Factual Background

The voir dire of Lieutenant Colonel (LTC) M focused on four areas: (1) his supervisory relationship with an enlisted member of the panel; (2) his professional relationship with trial counsel; (3) his relationship with Special Agent (SA) Wallace, a prosecution witness; and (4) his involvement in unlawful command influence in another case where the issue was raised by appellant’s trial defense counsel. Defense counsel also explored LTC M’s exposure to media coverage of the offenses before the court-martial, but no basis for challenge was developed because LTC M’s recollection of media coverage was vague and unspecific.

During initial voir dire by the military judge, LTC M disclosed that he was the battalion commander of Staff Sergeant (SSG) HM, a member of the panel, and as such he was required to evaluate SSG HM’s duty performance. SSG HM assured the military judge that he would not feel inhibited or restrained by LTC M’s presence on the panel. Likewise, LTC M assured the military judge that he would not be embarrassed or restrained if SSG HM disagreed with him.

LTC M also disclosed that trial counsel provided legal support to his battalion. He assured the military judge that he would not give more weight to trial counsel’s arguments because of their professional relationship.

LTC M disclosed that he knew a prosecution witness, SA Wallace, because of “several dealings quite some time ago with CID investigations.” He also disclosed that his daughter baby-sat SA Wallace’s children. On further questioning by the military judge, LTC M said that his relationship with SA Wallace was “just professional” and “nothing social.”

After both sides had completed their initial voir dire, the military judge sua sponte disclosed that in a previous case involving a Private First Class (PFC) Looney, he had “ma[d]e the determination in that case [LTC M] did some things he shouldn’t have done.” The military judge explained:

Specifically, I felt that he had engaged in some unlawful command influence, not intentionally, but that was the result of his actions. Specifically, I ruled that he had crossed the line in counseling or talking to some NCOs who had written statements on behalf of the accused in that case, which led to him being released from pretrial confinement____

The military judge commented that LTC M “got kind of grilled during that previous court-martial” and offered counsel an opportunity to inquire further. Defense counsel disclosed that she was the defense counsel who raised the issue and “grilled” LTC M in the previous case. Defense counsel stated that she was “not really concerned that [the military judge] found unlawful command influence” but was concerned that she had raised the issue and caused trouble for LTC M in a high-profile case with media attention.

On further voir dire by trial counsel, LTC M stated that he knew defense counsel “only from courts-martial,” and he opined that in the other case she “did a good job, in my opinion, of supporting her client.” He asserted that his experience in the previous court-martial would not affect his ability to impartially sit as a court member.

No further information about the previous court-martial was developed on the record. Defense counsel’s challenge of LTC M for cause was denied. Defense counsel then challenged LTC M peremptorily and preserved the issue by announcing that she would have exercised the peremptory challenge against another member if the challenge for cause had been granted. See RCM 912(f)(4), Manual for Courts-Martial, United States (1995 ed.).

Discussion

RCM 912(f)(l)(N) provides that a court member “shall be excused for cause whenever it appears that the member ... [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.” Recognizing that the convening authority appoints the members of the court-martial and each party has only a single peremptory challenge, this Court has enjoined military judges to be liberal in granting challenges for cause. United States v. Smart, 21 MJ 15, 21 (CMA. 1985).

RCM 912 includes both actual bias and implied bias. United States v. Harris, 13 MJ 288, 292 (CMA 1982). A military judge receives “great deference” from appellate courts on issues of actual bias. United States v. White, 36 MJ 284, 287 (CMA 1993). The judge receives less deference on implied bias. United States v. Napoleon, 46 MJ 279, 283 (1997). Implied bias is viewed through the eyes of the public, focusing on the appearance of fairness. United States v. Dale, 42 MJ 384, 386 (1995). Implied bias exists when “most people in the same position would be prejudiced.” United States v. Daulton, 45 MJ 212, 217 (1996). In United States v. Lavender, 46 MJ 485, 489 (1997), we recognized that implied bias should be invoked rarely.

In the case before us, LTC M’s professional relationship with SA Wallace was not per se disqualifying. United States v. Napoleon, supra. Likewise, his professional relationship with the trial counsel was not per se disqualifying. United States v. Hamilton, 41 MJ 22 (CMA 1994). Finally, his place in SSG HM’s rating chain was not per se disqualifying. United States v. Murphy, 26 MJ 454,456 (CMA 1988).

LTC M’s role in the trial of PFC Looney is more troublesome. LTC M disclaimed any animosity toward defense counsel, and he opined that she had done a good job for her client. Nevertheless, defense counsel had “grilled” LTC M and obtained a ruling that was personally and professionally embarrassing to LTC M in a high-profile case.

We hold that the military judge erred by not granting the challenge for implied bias. In the eyes of the public, the appearance of fairness would have been compromised by allowing LTC M to sit after being personally and professionally embarrassed by appellant’s defense counsel. This was a situation where “most people in the same situation would be prejudiced.” Daulton, 45 MJ at 217.

Furthermore, even if the exposure of LTC M’s unlawful command influence by trial defense counsel in PFC Looney’s case was not sufficient by itself to support an implied-bias challenge, the combination of that incident and LTC M’s relationships with a government witness, the trial counsel, and an enlisted member of the panel created the rare occasion where the implied-bias doctrine should have been invoked, because it would have raised substantial doubt about the fairness and impartiality of the proceedings if LTC M had remained on the panel. Allowing LTC M to sit would have been “asking too much of both him and the system.” Dale, 42 MJ at 386. Accordingly, we hold that the military judge abused his discretion by not granting the challenge for cause against LTC M.

Decision

The decision of the United States Army Court of Criminal Appeals is reversed. The findings and sentence are set aside. The record of trial is returned to the Judge Advocate General of the Army. A rehearing may be ordered.

Chief Judge COX and Judges SULLIVAN and EFFRON concur.