United States v. Private First Class ADAM T. LEATHORN ( 2020 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
KRIMBILL,! BROOKHART, and ALDYKIEWICZ
Appellate Military Judges
UNITED STATES, Appellee
Vv.
Private First Class ADAM T. LEATHORN
United States Army, Appellant
ARMY 20190037
Headquarters, Fort Bragg
Christopher E. Martin, Military Judge
Charles C. Poché, Staff Judge Advocate
For Appellant: Lieutenant Colonel Tiffany D. Pond, JA; Major Kyle C. Sprague, JA;
Captain James J. Berreth, JA (on brief and reply brief).
For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Wayne H.
Williams, JA; Major Jonathan S. Reiner, JA; Captain Allison L. Rowley, JA (on
brief).
11 December 2020
This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
ALDYKIEWICZ, Senior Judge:
Sometimes what’s left unsaid says it all.
During group voir dire in appellant’s sexual assault trial, the military judge
asked all prospective panel members, “Has anyone or any member of your family or
anyone close to you personally ever been the victim of an offense similar to any of
those charged in this case; again, conspiracy, sexual assault, and obstruction of
' Chief Judge (IMA) Krimbill participated in this case while on active duty.
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justice?” First Sergeant (1SG) MS? replied in the negative, a response that was
absolutely false. Notwithstanding 1SG MS’s apparent lack of candor, the assistant
trial counsel (ATC) made the court aware of the fact that 1SG MS’s minor daughter
had been the victim of a sexual assault, a fact clearly indicated on 1SG MS’s panel
member “questionnaire.” Defense counsel used that fact, as well as 1SG MS’s
initial non-disclosure, as a basis to challenge her for cause. The government
opposed the challenge and the military judge ultimately denied it.
On appeal, appellant argues that the military judge’s denial of this causal
challenge constitutes reversible error. We agree and provide relief in our decretal
paragraph, obviating the need to address appellant’s remaining assignments of error
and the matters personally raised pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A 1982).
I. BACKGROUND
An enlisted panel convicted appellant, contrary to his pleas, of two
specifications of conspiracy (i.e., conspiracy to sexually assault Private First Class?
(PFC) HS and conspiracy to obstruct justice by impeding the investigation into the
sexual assault), one specification of sexually assaulting PFC HS, and one
specification of obstruction of justice, in violation of Articles 81, 120, 134, Uniform
Code of Military Justice, 10 U.S.C. §§ 881, 920, 934 (2016) [UCMJ]. The
convening authority approved the adjudged sentence of a dishonorable discharge,
confinement for five years, and reduction to E-1.
A. The Crimes
On 9 June 2017, appellant, along with three other soldiers, conspired to
sexually assault PFC HS. Their plan centered on inviting PFC HS to a party and
getting her so drunk that appellant and his co-conspirators could “run a train” on
her. After getting PFC HS “the drunkest [she had] ever been in her life,” appellant
and his three co-conspirators took turns sexually assaulting her.
In September of that same year, after realizing that PFC HS reported the
sexual assaults, appellant, his three co-conspirators to the sexual assault, and two
* Both appellant and appellee, in their pleadings before this court, refer to First
Sergeant (1SG) MC. No member detailed to appellant’s court-martial, officer or
enlisted, had the initials MC. The member whose challenge was denied and upon
which appellant’s first assigned error focuses is 1SG MS.
3 By the time of trial, PFC HS had been promoted to the rank of Specialist. For the
sake of clarity, her rank at the time of the offense and as it appears on the charge
sheet is used throughout this opinion.
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additional soldiers agreed to obstruct justice by lying to law enforcement when
asked about the events of 9 June 2017.
B. The Panel — Referral, Assembly, and Challenges
Appellant’s case was referred to a general court-martial comprised of twelve
members. Considering appellant’s forum election of an enlisted panel and consistent
with the convening order to which appellant’s case was referred, the court-martial
was to be comprised of six officers and six enlisted members. At assembly, the total
number of members was eleven; one enlisted member was excused without
replacement.
Following voir dire, the government challenged for cause Major (MAJ) IW
and 1SG AA. The defense challenged for cause 1SG KB and 1SG MS. The military
judge granted all causal challenges except the defense challenge of 1SG MS. The
government and defense both exercised their single peremptory challenge; the
former challenged COL MH and the latter CSM TA. The result, after challenges,
was a panel of six members, four officers and two enlisted members.°
C. Voir Dire and Challenges for Cause
During general voir dire the military judge asked the standard twenty-eight
questions found in the Military Judges’ Benchbook. See Dept’t of Army, Pam. 27-9,
Legal Services: Military Judges’ Benchbook, para. 2-5-1 (1 Sep. 2014)
[Benchbook]. Both trial and defense counsel proceeded to ask general voir dire
questions, followed by individual voir dire. Among those recalled for individual
voir dire were MAJ IW, 1SG AA, 1SG KB, and 1SG MS. Following individual voir
dire, the military judge granted the government’s causal challenge of MAJ IW due to
his admissions that, based on his prior experience as a military police officer, he
questioned his ability to be fair and impartial. The military judge also granted the
government’s causal challenge of 1SG AA based on his prior service as a panel
member on a court-martial of one of appellant’s co-conspirators, PFC Timothy
Evans. The defense did not object to the government’s causal challenges of MAJ IW
and 1SG AA. The voir dire responses of 1SGs KB and MS, both during the group
and individual voir dire sessions, are relevant to the resolution of the issue before us
and are addressed in detail below.
* Colonel (COL) MH, Lieutenant Colonel (LTC) BA, LTC MA, LTC RJ, Major
(MAJ) IW, MAJ PA, Command Sergeant Major (CSM) RW, CSM TA, 1SG MS, 1SG
AA, and 1SG KB.
> Lieutenant Colonel BA, LTC MA, LTC RJ, MAJ PA, CSM RW, and 1SG MS.
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1. First Sergeant KB
During group voir dire, the military judge asked: “Has anyone or any member
of your family or anyone close to you personally ever been the victim of an offense
similar to any of those charged in this case; again, conspiracy, sexual assault, and
obstruction of justice?”® She responded in the negative. However, her responses to
the panel member “questionnaire” indicated that she was, in fact, the victim of a
sexual assault.
During individual voir dire, the following colloquy occurred between defense
counsel and 1SG KB:
Q. With regard to your questionnaire that you were -- that
you were provided by the legal office that you filled out --
A. Yes, sir.
Q. ---- I believe that you indicated that you, yourself,
were the victim of a crime?
A. Yes, sir.
. Okay, and that crime was sexual in nature?
. Yes, sir,
. Okay. The perpetrator was a fellow Soldier?
. Okay. Approximately when was that?
. 2003, sir.
Do you remember what the outcome was in that case;
Q
A
Q
A. Yes, sir.
Q
A
Q.
was there a prosecution, or?
° This is question number six from the standard Benchbook questions, which reads:
“Has anyone, or any member of your family, or anyone close to you personally ever
been the victim of an offense similar to any of those charged in this case?”
Benchbook, para. 2-5-1.
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A. No, sir. There was not a prosecution, sir.
Q. Okay. Is it fair to say that was a significant event in
your life?
A. Yes, sir.
Questioning by the military judge followed:
Q. First Sergeant [KB], let me just ask you a couple of
questions in follow-up. So this event, it happened in 2003
you said?
A. Yes, sir.
Q. When you came in here and saw the flyer, you heard
that this case involves sexual assault, did that in any way
trigger any memories or emotions from this experience
that you had?
A. No, sir.
Q. Is there anything about what happened to you that you
believe will come back in any way as you hear evidence in
this case?
A. No, sir.
Q. Is it something that you think about on a regular basis?
A. No, sir.
Q. Are you confident that you can set aside what
happened, however significant it may be, in terms of
deciding the guilt and innocence of the accused in this
trial?
A. Yes, sir.
Q. And you’re convinced you can follow the instructions
I give you and the law as I give you in this case?
A. Yes, sir.
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Defense counsel challenged 1SG KB for cause, citing both actual and implied
bias, the former by express declaration and the latter by implication. In making the
challenge, defense counsel noted:
Your Honor, First Sergeant [KB] has indicated that she
was, herself, the victim of sexual assault by her platoon
leader on her questionnaire. For whatever reason,
although the Court’s questions are very, very clear -- if
they’ve ever been a victim of a similar offense. She did
not answer that question. I do think that should be a
factor that we should take into consideration as a concern
for her involvement on it. When asked in individual voir
dire, she indicated that this was a significant event in her
life, and she exhibited physically in the courtroom, which
could be observed as somewhat -- I don’t know how to
describe it, but a reaction to -- a physical reaction to the
fact that no charges had ever been preferred or any
prosecution sought in that case.
So based on that, we believe -- and the fact that she did
not disclose it initially, we believe that it is actual bias.
Even if it was not actual bias, given the liberal grand --
grant mandate, we believe that the public looking at this
proceeding would not believe that someone who was,
themselves, a victim of sexual assault by a fellow Soldier,
didn’t disclose it, and indicated that it was, in fact, a
significant event in their life would have questions with
regard to that member’s ability to be fair and impartial.
In opposing the causal challenge, the trial counsel argued:
The event in question was 16 years ago, approximately.
She stated that this doesn’t trigger — the flyer and the facts
of the case as presented on the flyer at least didn’t trigger
amemory. She doesn’t think about the event regularly,
and she answered your question that she would be able to
set aside any past occurrences to try this case fairly and
impartially.
In his ruling granting the challenge, the military judge stated:
All right, in considering the liberal grant mandate, I am
going to grant that challenge for cause. Although I have
no doubt from her answers to me that First Sergeant [KB]
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would do her utmost to consider only evidence in the
charges in this case, I am, too, concerned about her not
disclosing up front that she was apparently a victim of
prior sexual assault in the questionnaire. Maybe that was
just a misunderstanding, but the fact is she didn’t disclose
that up front. She did note that this prior event, although
it was a while ago, was a fellow Soldier, and it was, she
said, a significant event. So I want to grant that challenge
for cause.
2. First Sergeant MS
During group voir dire, like 1SG KB, 1SG MS also replied in the negative to
the question about prior victimization. Following group voir dire by the military
judge and prior to any individual voir dire, the ATC advised the military judge that
1SG MS’s response to the aforementioned “self or family member victim” question
was inaccurate. The ATC noted:
[S]ir, I just wanted to bring to the court’s attention that
First Sergeant [MS] was voir-dired on a previous court-
martial for a co-accused, and at that time, it was brought
to the court’s attention that her daughter was the victim of
sexual assault. I know she did not raise her hand when
you asked if someone close to you or a family member
was a victim of similarly charged crimes. I’m not sure
why she didn’t raise her hand, but I did want to ensure the
defense had the same knowledge as the government.
Individual voir dire by defense counsel revealed the following:
Q. First Sergeant [MS], the questions that I have for you
relate to information that you provided to the court and I
believe is part of the questionnaire that you filled out.
A. Okay.
Q. Okay. We don’t have to go into the details too much
here, but I think you understand why we have to ask about
it. So my understanding, based on your questionnaire, is
that your daughter was involved in a sexual assault case.
Is that right?
A. That’s correct, sir.
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Q.
All right. So your daughter was involved in a sexual
assault case? Is that correct?
A. That’s correct, sir.
Q. Do you know if alcohol was involved in that case?
A. No, there wasn’t.
Q. Okay. The perpetrator in that case, was it a fellow
Soldier?
A. Yes, it was a Soldier.
Q. Okay. And this occurred in approximately 2012?
A. That’s correct, sir.
Q. Okay. Is it fair to say that was a significant event in
your life?
A. Yes, it was.
Q. As well as your daughter’s?
A. Correct.
Q. What was your reaction when you came in and saw
what the charges were in this case?
A.
I really had no reactions as far as -- I mean, it didn’t
shock me or anything if that’s what you’re asking.
Q.
Sure, sure. Fair to say that you thought about your
daughter, though?
A.
No, not at all.
The military judge followed up, asking:
Q.
First Sergeant [MS], so for this incident happening,
did you say 2012?
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Yes, sir.
Was your daughter a Soldier as well?
Negative.
Okay. And was she over 18 or under 18?
PO PF GP
Under 18.
Q. Okay. Do you have any concerns whatsoever in sitting
in a case that involves an allegation of sexual assault
between two Soldiers?
A. Negative. I do not, sir.
Q. Are you convinced that you can follow my instructions
and consider only the evidence in this case and not bring
anything, as in outside experience, into the courtroom ----
A. Yes, sir.
Q. ---- when deciding guilt or innocence?
A. Yes, sir,
In challenging 1SG MS, defense counsel argued:
The basis for that challenge is similar to First Sergeant
[KB]. She did not disclose that a close family member
had been the victim of a sexual assault. It was the
government that brought it to the court and the defense’s
attention, and she did disclose it in her data sheet that --
that she had brought that to the attention of the court in a
previous case, which, again, raises a similar concern as
did First Sergeant [KB].
If she disclosed it previously and then was not permitted
to serve on that case, why wasn’t it disclosed here given
the fact that it was a significant event in her life, a
significant event in her daughter’s life; that it happened in
2012, and on the data sheet, she indicates that the
perpetrator is at Leavenworth?
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So given everything that we’ve seen there, it may — may
not rise to the level of actual cause, but, again, given the
liberal grant mandate, given the reality that we have that
she didn’t disclose it here, she previously disclosed it and
was not permitted to serve on that case, I believe there is a
significant question as to implied bias. And on that basis,
we would ask the court to excuse First Sergeant [MS] for
cause.
In opposing the challenge, the government argued:
Again, it was not as long, but it was still 6 years prior.
She said looking at the flyer she didn’t have any reaction.
There was no alcohol in that case, so the facts would be
substantially dissimilar in this case. And she also said
that she could be fair and impartial and would have no
issues setting aside any other occurrences to try this case
fairly.
When the military judge asked about 1SG MS’s non-disclosure of the prior
sexual assault of her then minor child, the government argued: “Your Honor, I think
that could be as simple as maybe she was thinking that she gave it on the
questionnaire, knowing that it was before the court. J don’t think that that indicates
an evaSive response in any manner or anything like that.”
Without any further discussion or additional input from defense counsel, the
military judge denied the challenge for cause, concluding:
All right, having considered the liberal grant mandate and
actual and implied bias, the challenge for cause for First
Sergeant [MS] is denied.
Obviously, every member is different and brings into this
room different experiences, and so we have to consider
each individually. And although there is that discrepancy
about the questionnaire, she did in fact answer forthrightly
when we asked her about it on the record here. She did
disclose it was her daughter. It’s not her personally, not
that that lessens it as an impact on her, but it is one step
removed from her personal experience. She did say the
perpetrator was a Soldier, but her daughter was not a
Soldier. And she was under 18 at the time, which, again,
is factually distinct from this case. She also said that
there was no alcohol involved in that situation, which is
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also factually distinct from this case. It was 6 years ago.
I found her answers to be very forthright and unhesitating.
And I was convinced when she told me that she was
convinced that she could follow the law in this case and
apply or consider only the evidence in this case.
D. Judicial Notice of Co-Conspirator’s Case
We hereby sua sponte take judicial notice of the record of trial in United
States v. PFC Timothy J. Evans, ARMY 20180651, the general court-martial of one
of appellant’s co-conspirators. See Military Rule of Evidence 201; see also United
States v. Koneski, 4 M.J. 911, 914 (A.F.C.M.R. 1977) (citations omitted) (“We may
properly notice judicially, for an appropriate purpose, our own records in cases other
than the one presently under consideration.”).
As noted above, when asked by the military judge in the case at bar whom the
parties wanted recalled for individual voir dire, the ATC advised the court that 1SG
MS, in a prior court-martial of one of appellant’s co-conspirators, had indicated her
daughter was a victim of sexual assault. The case to which the ATC was referring
was United States v. Evans. While government counsel advised the military judge
about the occurrence of a prior voir dire session and the eventual disclosure of 1SG
MS’s daughter’s status as a victim, the government failed to advise the military
judge that 1SG MS was similarly “dishonest” in PFC Evans’ case when responding
to the military judge’s initial group voir dire question concerning prior
victimization.
In Evans, one of the charges PFC Evans faced was sexual assault of PFC HS
by committing a sexual act upon her when “[PFC Evans] knew or reasonably should
have known that PFC HJS was asleep, unconscious, or otherwise unaware that the
sexual act was occurring.”’ During voir dire in that case, a voir dire that occurred
just forty-nine days prior to voir dire in appellant’s case, the military judge® asked
the members, to include 1SG MS, “Has anyone or any member of your family or
anyone close to you personally ever been the victim of an offense similar to the
offenses charged?” First Sergeant MS replied in the negative, as did all other
members.
Only when the court and the parties completed group voir dire and the
military judge asked the parties whom they wanted recalled for individual voir dire
7 But for the named accused, PFC Evans and appellant were charged with identical
sexual assault specifications.
® The military judge in Evans was not the same military judge in appellant’s case.
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was the court made aware that 1SG MS was less than candid with the court, a fact
brought forth by the assistant defense counsel. The following colloquy between the
military judge and assistant defense counsel occurred:
ADC: ... And then First Sergeant [MS] noted in her
questionnaire that her -- she had a daughter that was a
victim of sexual assault against another Soldier.
MJ: I think she answered in the negative to my question,
but she wrote in her questionnaire that she has a daughter
who was or is the victim?
ADC: That’s correct, Your Honor.
MJ: Right. Okay.
During individual voir dire, the facts and circumstances surrounding 1SG
MS’s daughter’s assault were developed as well as her stated ability to put her
daughter’s assault aside and judge PFC Evans only on the evidence before the court.
Why 1SG MS answered the military judge’s question regarding whether she or a
family member had been the victim of any offense similar to one on the flyer in the
negative was never explored or developed. When challenged for cause by the
defense, the military judge granted the challenge citing “implied bias” and the
“liberal grant mandate.”
Il. LAW AND DISCUSSION
A. Right to an Unbiased Military Panel
An accused has a “constitutional right, as well as a regulatory right, to a fair
and impartial panel.” United States v. Commisso, 76 M.J. 315, 321 (C.A.A.F. 2017)
(quoting United States v. Wiesen, 56 M.J. 172, 174 (C.A.A.F. 2001)). “Indeed,
‘impartial court-members are a sine qua non for a fair court-martial.’” Wiesen, 56
M.J. at 174 (quoting United States v. Modesto, 43 M.J. 315, 318 (C.A.A.F. 1995)).
Rule for Courts-Martial (R.C.M.) 912 directs excusal for cause whenever it
appears that a 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.”
R.C.M. 912(f)(1)(N). “This rule includes actual bias as well as implied bias.”
United States v. Miles, 58 M.J. 192, 194 (C.A.A.F. 2003) (citation omitted). Actual
bias and implied bias are “separate tests, but not separate grounds for a challenge.”
Id, (citation omitted). “The burden of establishing that grounds for a challenge exist
is upon the party making the challenge.” R.C.M. 912(f)(3); see United States v.
Daulton, 45 M.J. 212, 217 (C.A.A.F. 1996) (citing R.C.M. 912(f)(3)).
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B. Actual v. Implied Bias
Actual bias is “‘bias in fact.’” United States v. Hennis, 79 M.J. 370, 384
(C.A.A.F. 2020) (quoting United States v. Wood, 299 U.S. 123, 133 (1936)). “It is
‘the existence of a state of mind that leads to an inference that the person will not
act with entire impartiality.”” Jd. (quoting Fields v. Brown, 503 F.3d 755, 767 (9th
Cir. 2007)). It is a “personal bias which will not yield to the military judge’s
instructions and the evidence presented at trial.” Jd. (quoting United States v. Nash,
71 M.J. 83, 88 (C.A.A.F. 2012)). “Actual bias is a question of fact to be decided by
the trial judge on the basis of the responses of the member and any other evidence
presented at the court-martial.” United States v. Velez, 48 M.J. 220, 224 (C.A.A.F.
1998); see also United States v. Bragg, 66 M.J. 325, 326 (C.A.A.F. 2008).
Implied bias is “bias conclusively presumed as [a] matter of law.” Hennis, 79
M.J. at 385 (quoting Wood, 299 U.S. at 133). It is “bias attributable in law to the
prospective juror regardless of actual partiality.” Jd. (quoting Wood, 299 U.S. at
134); see Black’s Law Dictionary 198 (10th ed. 2014) (“Bias, as of a juror, that the
law conclusively presumes because of kinship or some other incurably close
relationship; prejudice that is inferred from the experiences or relationships ofa...
juror....”). “The core of the implied bias test ‘is the consideration of the public’s
perception of fairness in having a particular member as part of the court-martial
panel.’” United States v. Rogers, 75 M.J. 270, 271 (C.A.A.F. 2016) (quoting United
States v. Peters, 74 M.J. 31, 34 (C.A.A.F. 2015)).
C. Standard of Review — Plain Error v. Abuse of Discretion
1. Plain Error
When an appellant raises a new ground for challenge against a member not
previously raised at trial, the court reviews the post-trial challenge for “plain or
obvious error.” United States v. Ai, 49 M.J. 1, 5 (C.A.A.F. 1998) (citing Velez, 48
M.J. at 225); United States v. Bannwarth, 36 M.J. 265, 268 (C.M.A. 1993). “Plain
error occurs when (1) there is error, (2) the error is plain or obvious, and (3) the
error results in material prejudice.” United States v. Martinez, 70 M.J. 154, 157
(C.A.A.F. 2011) (citing United States v. Maynard, 66 M.J. 242, 244 (C.A.A.F.
2008)).
In its pleadings before this court, the government argues this court should
apply a plain error analysis to the military judge’s denial of appellant’s causal
challenge of 1SG MS. The government argues appellant abandoned the basis
“articulated to the military judge [at trial]—that 1SG MC (sic) had implied bias
based upon her failure to disclose—in favor of a generalized, unpreserved basis that
the family of sexual assault victims cannot serve as members in a sexual assault
court-martial” thus raising a “new ground for his challenge on appeal.”
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We disagree. Contrary to the government’s argument, defense counsel raised
an implied bias challenge that had as its basis the fact that 1SG MS’s daughter was
the victim of a sexual assault, an assault that 1SG MS failed to disclose when
required to do so during general voir dire by the military judge. When making a
challenge against 1SG MS, defense counsel opened with, “t]he basis for that
challenge is similar to First Sergeant [KB]” and ended with “I believe there is a
significant question as to implied bias.” The challenge regarding 1SG KB addressed
not only her failure to disclose her status as a victim, but that status as well. As
such, by raising a challenge for reasons “similar to First Sergeant KB,” the defense
raised both non-disclosure and status in support of the implied bias challenge against
1SG MS. Consequently, we review the military judge’s denial of the causal
challenge against 1SG MS for an abuse of discretion.
2. Abuse of Discretion
A military judge’s ruling on a challenge for cause is reviewed for an abuse of
discretion. United States v. Downing, 56 M.J. 419, 422 (C.A.A.F. 2002) (citing
United States v. Armstrong, 54 M.J. 51, 53 (C.A.A.F. 2000)). An abuse of discretion
occurs “if the military judge’s findings of fact are clearly erroneous or if the
decision is influenced by an erroneous view of the law.” United States v. Dockery,
76 M.J. 91, 96 (C.A.A.F. 2017) (quoting United States v. Quintanilla, 63 M.J. 29, 35
(C.A.A.F. 2006)). The abuse of discretion standard calls “for more than a mere
difference of opinion. The challenged action must be arbitrary, fanciful, clearly
unreasonable, or clearly erroneous.” United States v. Baker, 70 M.J. 283, 287
(C.A.A.F. 2011) (quoting United States v. White, 69 M.J. 236, 239 (C.A.A.F. 2010)).
“(Military judges are enjoined to be liberal in granting defense challenges for
cause.” United States v. Clay, 64 M.J. 274, 276 (C.A.A.F. 2007) (citing United
States v. Moreno, 63 M.J. 129, 134 (C.A.A.F. 2006)); United States v. Leonard, 63
M.J. 398, 402 (C.A.A.F. 2006). “[I]n close cases military judges are enjoined to
liberally grant challenges for cause.” Peters, 74 M.J. at 34 (quoting Clay, 64 M.J. at
277) (internal quotation marks omitted). A causal challenge addresses
disqualification based on either actual bias, implied bias, or both, and is evaluated
based on the “totality of the circumstances.” United States v. Richardson, 61 M.J.
113, 118 (C.A.A.F. 2005).
The degree of deference afforded a military judge’s decision varies depending
on which bias the judge’s ruling addresses. An actual bias ruling is entitled to great
deference while an implied bias ruling less, specifically less deference than abuse of
discretion but greater than de novo. See Clay, 64 M.J. at 276; Dockery, 76 M.J. at
96.
Regarding the deference afforded a military judge’s ruling on an implied bias
challenge, it exists on a sliding scale dependent on whether, and to what extent, the
military judge places his analysis on the record. Thorough, well-reasoned analysis
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places the ruling on the end closest to abuse of discretion review. The absence of
any analysis places the judge’s ruling at the end closest to de novo review. In 2002,
our Superior Court stated reviewing courts “do not expect record dissertations but,
rather, a clear signal that the military judge applied the right law. While not
required, where the military judge places on the record his analysis and application
of the law to the facts, deference is surely warranted.” Downing, 56 M.J. at 422. On
no fewer than six occasions since, our Superior Court has reminded military judges
of the importance of placing their analysis on the record. See Richardson, 61 M.J. at
120; United States v. Terry, 64 M.J. 295, 305 (C.A.A.F. 2007); Bragg, 66 M.J. at
326; Peters, 74 M.J. at 34; Rogers, 75 M.J. at 273; Dockery, 76 M.J. at 96.
Reversal will “indeed be rare” when a military judge “considers a challenge
based on implied bias, recognizes his duty to liberally grant defense challenges, and
places his reasoning on the record.” Clay, 64 M.J. at 277. Merely parroting the
standard, however, without more, will rarely constitute the level of analysis
contemplated by Downing and its progeny. See Dockery, 76 M.J. at 96 (quoting
Peters, 74 M.J. at 34) (“[Ml]ere ‘incantation of the legal test [for implied bias]
without analysis is rarely sufficient in a close case.’”).
D. First Sergeant MS’s Non-Disclosure of Her Daughter’s Sexual Assault
First Sergeant MS, along with every other panel member, was asked a simple,
straightforward question during general voir dire by the military judge, “Has anyone
or any member of your family or anyone close to you personally ever been the
victim of an offense similar to any of those charged in this case; again, conspiracy,
sexual assault, and obstruction of justice?” She replied in the negative, a response
that was absolutely false, or, to use our Superior Court’s terminology, “dishonest.”
Commisso, 76 M.J. at 322. A panel member “is dishonest when he fails to exhibit
‘complete candor.’” Jd. (quoting United States v. Albaaj, 65 M.J. 167, 169
(C.A.A.F. 2007)). The test for member dishonesty “is not whether the panel
members were willfully malicious or intended to deceive—it is whether they gave
objectively correct answers.” Id. (citing Albaaj, 65 M.J. at 170).
When the defense challenged 1SG MS for cause, the military judge asked the
government to explain the non-disclosure, to which government counsel responded,
“Your Honor, I think that could be as simple as maybe she was thinking that she
gave it on the questionnaire, knowing that it was before the court. I don't think that
that indicates an evasive response in any manner or anything like that.”
The government’s attempt to provide an innocent motive suffers from several
flaws. First, the focus is not on intent but on whether the member “gave objectively
correct answers.” Commisso, 76 M.J. at 322. Second, nothing on the record
supports the explanation provided by the government. Neither counsel nor the
military judge asked 1SG MS to explain why she failed to answer the military
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judge’s question honestly. Third, 1SG MS knew or should have known what the
“objectively correct answer” was to the question at issue, since she had been
similarly dishonest in answering that same question just forty-nine days prior, in
United States v. Evans. Any benefit of the doubt to which she may have been
entitled regarding how to answer the question properly was gone by the time of
appellant’s trial.
E. Denial of Causal Challenge of ISG MS
Having found that defense counsel preserved both their actual and implied
bias challenges against 1SG MS and determined that abuse of discretion review
applies, we address actual and implied bias in turn.
1. Actual Bias
A review of the record reveals the absence of any actual bias on the part of
1SG MS. When asked whether she had any concerns about sitting on a case
involving sexual assault, she replied in the negative. When asked if she could
follow the military judge’s instructions and decide the case only on the evidence
presented and without any outside influence, she replied in the affirmative. The
record reveals no indication of actual bias on 1SG MS’s part, based on her responses
to the questions from counsel and the military judge. None of her responses were
qualified or raised any concerns of “personal bias” incapable of “yield[ing] to the
military judge’s instructions and the evidence presented at trial.” Nash, 71 M.J. at
88.
Even defense counsel, when challenging 1SG MS, appeared to struggle with
the actual bias component of the challenge, arguing, in part, “So given everything
that we’ve seen there, it may — may not rise to the level of actual cause, but, again,
given the liberal grant mandate... .”
In ruling on the challenge, the military judge noted, in part:
All right, having considered the liberal grant mandate and
actual and implied bias, the challenge for cause for First
Sergeant [MS] is denied.
I found her answers to be very forthright and unhesitating.
And I was convinced when she told me that she was
convinced that she could follow the law in this case and
apply or consider only the evidence in this case.
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Considering the “great deference” afforded a military judge’s ruling on actual
bias, and the fact that he had the opportunity to observe 1SG MS’s demeanor and
assess her credibility as she answered voir dire questions, we find no abuse of
discretion in denying the challenge based on actual bias. Id.
2. Implied Bias
The same cannot be said regarding the military judge’s implied bias ruling,
however.
Beyond citing to the “liberal grant mandate,” the military judge’s ruling
provides no analysis regarding appellant’s implied bias challenge of ISG MS. The
ruling is, at best, “a mere ‘[i]ncantation of the legal test [for implied bias] without
analysis.” Dockery, 76 M.J. at 96 (quoting Peters, 74 M.J. at 34). By supplying
only a barebones ruling with no analysis of implied bias, the military judge failed to
heed our Superior Court’s advice to provide a “clear signal” that the correct law was
being applied. Downing, 56 M.J. at 422. As such, we afford little to no deference to
the military judge’s implied bias ruling in this case.
A line-by-line review of the military judge’s eleven-line’ ruling highlights the
absence of any implied bias analysis. Further, it highlights the arbitrary and
capricious nature of the military judge’s ruling, broken down line by line as follows:
[Line 1] All right, having considered the liberal grant
mandate and actual and implied bias, the challenge for
cause for First Sergeant [MS] is denied.
[Line 2] Obviously, every member is different and brings
into this room different experiences, and so we have to
consider each individually.
[Line 3] And although there is that discrepancy about the
questionnaire, she did in fact answer forthrightly when we
asked her about it on the record here.
[Line 4] She did disclose it was her daughter.
° Our decision rests on a qualitative versus quantitative analysis of the ruling at
issue. We are not suggesting than an eleven-sentence ruling could not meet the
demands of Downing and its progeny.
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[Line 5] It’s not her personally, not that that lessens it as
an impact on her, but it is one step removed from her
personal experience.
[Line 6] She did say the perpetrator was a Soldier, but her
daughter was not a Soldier.
[Line 7] And she was under 18 at the time, which, again,
is factually distinct from this case.
[Line 8] She also said that there was no alcohol involved
in that situation, which is also factually distinct from this
case.
[Line 9] It was 6 years ago.
[Line 10] I found her answers to be very forthright and
unhesitating.
[Line 11] And I was convinced when she told me that she
was convinced that she could follow the law in this case
and apply or consider only the evidence in this case.
Notably absent is any mention of the public’s perception of fairness or that
implied bias is viewed objectively through the eyes of a member of the public
familiar with “the unique structure of the military justice system.” United States v.
Woods, 74 M.J. 238, 243-44 (C.A.A.F. 2015) (citing Bagstad, 68 M.J. at 462).
Regarding line 3, the finding by the military judge is misleading. There was no
“discrepancy” regarding 1SG MS’s questionnaire; rather, there was a conflict
regarding what she answered on the questionnaire and how she answered, while
under oath, the military judge’s general voir dire question. Her general voir dire
answer was objectively dishonest. Confronted with the conflicting answers, neither
counsel nor the military judge sought to “fill any implied bias gaps” that 1SG MS’s
answer created. Clay, 64 M.J. at 277.
Regarding line 5, we are at a loss to see how a member of the public would
distinguish between a panel member who was a victim of sexual assault and their
minor child. In lines 6, 7, and 8, the military judge focuses on factual differences
between appellant’s case and the sexual assault of 1SG MS’s daughter. While the
military judge’s factual conclusions are not clearly erroneous, he failed to provide
any analysis concerning the import of those factual differences when viewed by an
objective member of the public. In line 9, the military judge repeated 1SG MS’s
answer that her daughter was assaulted six years prior to appellant’s court-martial.
While, again, not a clearly erroneous factual conclusion, the military judge did not
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discuss the significance of this fact. For example, there is no discussion concerning
how the sexual assault of 1SG MS’s daughter—something 1SG MS described as a
“significant” event for both her and her daughter—continued to affect 1SG MS and
her daughter.'° Finally, lines 10 and 11 speak to the military judge’s observations of
1SG MS as she answered questions during voir dire, describing her as “forthright”
and “unhesitating,” observations that are more relevant to actual bias analysis and,
in any event, were in direct conflict with 1SG MS’s lack of candor during the
military judge’s general voir dire.
The military judge’s ruling on 1SG MS is even more curious when compared
to his ruling on the challenge of 1SG KB. Both 1SG KB and 1SG MS were
dishonest during general voir dire; the reason or rationale for the dishonesty was not
explored or explained; 1SG KB was the victim of a sexual assault, whereas 1SG
MS’s daughter was the victim; at the time of the assault, 1SG KB was an adult and
1SG MS’s daughter was a minor; 1SG KB’s assault occurred sixteen years prior
whereas 1SG MS’s daughter’s sexual assault occurred six years prior; the perpetrator
in both cases was a soldier; 1SG KB was a soldier herself when assaulted whereas
1SG MS’s daughter was a civilian; whether alcohol was involved in 1SG KB’s
assault is unanswered because no one asked, whereas 1SG MS’s daughter’s assault
did not involve alcohol; 1SG KB’s assailant was not prosecuted, whereas 1SG MS’s
daughter’s assailant was; 1SG KB and 1SG MS both noted the assault was a
significant event in their lives, the latter adding it was also a significant event in her
daughter’s life; neither had a reaction to seeing the flyer in the case; neither
believed that the past events would play a role in the court-martial or enter into their
decision making; and both agreed they could follow the military judge’s instructions
and decide the case only on the evidence presented.
Given the similarities between the voir dire responses of 1SGs KB and MS,
we are left wondering why 1SG MS was permitted to serve on the panel given the
prior excusal of 1SG KB. Considering the totality of the circumstances, and finding
no plausible rationale in the record, we conclude the military judge’s decision not to
excuse 1SG MS in light of his decision to excuse 1SG KB was “arbitrary” and
“clearly unreasonable.” United States v. Lloyd, 69 M.J. 95, 99 (C.A.A.F. 2010)
(quoting United States v. McElhaney, 54 M.J. 120, 130 (C.A.A.F. 2000))."!
10 We recognize that “a prior experience with or connection to the crime in question
is not per se disqualifying.” Terry, 64 M.J. at 295. However, when addressing
causal challenges against panel members that have such experiences or connections,
it is critical for military judges to gather sufficient factual information in order to
apply the test for implied bias in a comprehensive manner.
'l A review of the number of members upon assembly of the court, the breakdown of
(continued .. .)
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In conclusion, excusal of 1SG MS for implied bias was not a “close case.”
Assuming arguendo otherwise, there is simply no record before us demonstrating
“whether, how, and with what nuance, the military judge applied the principles
embodied in the implied bias doctrine.” Clay, 64 M.J. at 278. As noted above, “in
close cases military judges are enjoined to liberally grant challenges for cause.”
Peters, 74 M.J. at 34 (quoting Clay, 64 M.J. at 277) (internal quotation marks
omitted). Viewed objectively and considering the totality of the circumstances, we
believe 1SG MS’s inclusion on appellant’s court-martial panel results in “too high a
risk that the public will perceive” that appellant received less than a court-martial
composed of fair, impartial, unbiased members. Wiesen, 56 M.J. at 176; Woods, 74
M.J. at 243-44. Consequently, we conclude the military judge abused his discretion
by failing to grant the causal challenge against 1SG MS based on implied bias.
III. CONCLUSION
The findings and sentence are SET ASIDE. A rehearing may be ordered by
the same or different convening authority.
Chief Judge (IMA) KRIMBILL and Senior Judge BROOKHART concur.
(. . . continued)
those members, and the order in which the military judge granted challenges in this
case suggests a possible, alternative explanation as to why 1SG MS was not excused
given the prior excusal of 1SG KB. The court-martial began with six officers and
five enlisted members. After voir dire, the military judge granted three causal
challenges, excusing one officer and two enlisted members. The composition of the
court-martial at that point was five officers and three enlisted members. A grant of
the causal challenge against 1SG MS would have taken the court-martial to below
the required one-third enlisted membership. See UCMJ art. 25(c)(1); R.C.M.
503(a)(2). After the exercise of peremptory challenges, the court-martial panel, with
1SG MS, was comprised of four officer and two enlisted members. Had 1SG MS
been excused, either upon reconsideration requested by appellant or sua sponte by
the military judge, the court-martial panel would have fallen below the required one-
third enlisted membership. We remind military judges and practitioners that concern
about inconvenience resulting from the need to halt court-martial proceedings in
order to add additional panel members to satisfy quorum requirements “is not an
adequate ground to deny a challenge for cause.” United States v. Smart, 21 M.J. 15,
20-21 (C.M.A. 1985) (citing United States v. Mason, 16 M.J. 455, 458-59 (C.M.A.
1983) (Everett, C.J., dissenting)).
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FOR THE COURT;
MALCOLM H. SQUIRES, JR.
Clerk of Court
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