United States v. Peters , 74 M.J. 31 ( 2015 )

UNITED STATES, Appellee
v.
Jordan M. PETERS, Specialist
U.S. Army, Appellant
No. 14-0289
Crim. App. No. 20110057
United States Court of Appeals for the Armed Forces
Argued October 21, 2014
Decided February 12, 2015
BAKER, C.J., delivered the opinion of the Court, in which
ERDMANN and OHLSON, JJ., joined. STUCKY and RYAN, JJ., each
filed a separate dissenting opinion.
Counsel
For Appellant: Captain Payum Doroodian (argued); Colonel Kevin
Boyle and Major Amy E. Nieman (on brief); Major Vincent T.
Schuler and Captain Ian M. Guy.
For Appellee: Captain Timothy C. Erickson (argued); Colonel
John P. Carrell, Lieutenant Colonel James L. Varley and Major
John Choike (on brief); Captain T. Campbell Warner.
Military Judge: Mark Bridges
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Peters, No. 14-0289/AR
Chief Judge BAKER delivered the opinion of the Court.
A general court-martial composed of officer and enlisted
members convicted Appellant, based on mixed pleas, of drunken
operation of a vehicle, causing injury because of that drunken
operation, two specifications of involuntary manslaughter, and
aggravated assault in violation of Article 111, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. § 911 (2012); Article 119,
UCMJ, 10 U.S.C. § 919 (2012); Article 128, UCMJ, 10 U.S.C. § 928
(2012). 1 He was sentenced to ten years of confinement,
forfeiture of all pay and allowances, reduction to the grade of
E-1, and a bad-conduct discharge. The convening authority
approved the findings and the sentence except for a reduction of
the period of confinement to nine years and six months. The
United States Army Court of Criminal Appeals affirmed the
findings and sentence as approved by the convening authority.
This Court granted review of the following issue:
WHETHER THE MILITARY JUDGE ERRED IN DENYING THE
IMPLIED BIAS CHALLENGE AGAINST [LIEUTENANT COLONEL
COOK], IN LIGHT OF [HIS] PROFESSIONAL RELATIONSHIP
WITH TRIAL COUNSEL, THE SPECIAL COURT-MARTIAL
CONVENING AUTHORITY, AND THE INVESTIGATING OFFICER.
For the reasons set forth below, we conclude that the
military judge abused his discretion when he denied the
1
Appellant was also charged with, and pled not guilty to, one
specification under Article 134, UCMJ, 10 U.S.C. § 934 (2012),
but the charge was dismissed after the findings of guilty and
before the sentence upon a defense motion.
2
United States v. Peters, No. 14-0289/AR
challenge for cause against Lieutenant Colonel (LTC) Cook.
There is no per se rule of disqualification when a member knows
or has worked with trial counsel or defense counsel. Rather,
such relationships are evaluated through the lens of Rule for
Courts-Martial (R.C.M.) 912(f)(1)(N) and the doctrines of actual
and implied bias. This case is a close case and a rare case
where the record reflects a qualitative bond rising to the level
of implied bias. Therefore the military judge abused his
discretion by not applying the liberal grant mandate. Thus, we
reverse.
Background
Appellant elected to be tried by a panel of both officer
and enlisted members. One of the officers placed on the panel
was LTC Cook, a battalion commander with the 2nd Brigade Combat
Team, 4th Infantry Division. Prior to trial, counsel had an
opportunity to voir dire LTC Cook, who disclosed that he had a
professional relationship with Captain (CPT) Krupa, the trial
counsel in this case. Specifically, CPT Krupa served as a judge
advocate for LTC Cook’s brigade.
During voir dire, LTC Cook informed counsel and the
military judge that he sought CPT Krupa’s legal advice on a
regular basis, including the night before voir dire, on an
unrelated military justice issue. LTC Cook was aware that CPT
Krupa was involved with this case when they spoke on the phone
3
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and stated that their phone conversation likely ended with the
words, “see you tomorrow.”
LTC Cook also called CPT Krupa after being summoned to
serve on the court-martial panel:
[LTC Cook:] [A]s soon as I was notified last week that you
know -- I was talking to Captain Krupa again about another
legal matter and it was -- I said, “Hey, I’ve been summoned
to be a court-martial panel member for a case that involves
the brigade,” and Captain Krupa said, “Sir, I’m aware of
that, and it’s a -- sir, it’s not uncommon practice.” I
said, “Okay.” Because I was filling out my questionnaire
on whether or not I -- to be a court-martial panel member,
or assessing, you know, how to deal with my schedule and be
able to serve on this court-martial, and so as we discussed
an investigation that was under legal review, I did say,
“Hey, I’ve been summoned to be on this court-martial.”
During voir dire, LTC Cook also volunteered that he knew
Colonel (COL) Kolasheski, the brigade commander who forwarded
Appellant’s charges for court-martial. When asked about that
relationship, he said that COL Kolasheski was his “rater and
boss,” but that the relationship would “not affect my ability to
be fair and impartial in this case.” Additionally, when asked
whether “any member [is] aware of any matter that might raise
substantial question concerning your participation in this
trial,” LTC Cook raised his hand because Major (MAJ) Krattiger,
the investigating officer assigned to Appellant’s case, was LTC
Cook’s executive officer (XO).
Appellant objected to LTC Cook’s panel membership because
of these three relationships. In opposing the challenge, trial
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United States v. Peters, No. 14-0289/AR
counsel (CPT Krupa) -- whose own relationship with LTC Cook was
in question -- provided what amounted to a personal endorsement
of LTC Cook’s character as argument that he should remain on the
panel:
[TC:] Colonel Cook is one of the most conscientious and
thoughtful commanders within the brigade. . . . He takes
this incredibly seriously as evidenced by his answers.
The military judge denied Appellant’s implied bias challenge and
also relied on LTC Cook’s character as the basis for that
decision:
[MJ:] I can’t say enough about how I believe that his [LTC
Cook’s] demeanor, his thoughtful answers to the questions
that were asked indicate to me that he is truthful and that
he can be an impartial panel member in this case.
In discussing his findings, the military judge also summarily
stated that he had considered the legal test for implied bias,
including the requirement that the liberal grant mandate be
considered:
[MJ:] Concerning implied bias, implied bias exists if an
objective observer would have a substantial doubt about the
fairness of this court-martial proceeding. And I think
that an objective observer who heard Colonel Cook and saw
Colonel Cook responding to the questions of counsel would
not have any reason to doubt his impartiality in this case.
So, I don’t believe that there’s actual or implied bias
established in this case. And I am considering the liberal
grant mandate that the Appellate Courts have asked me to
consider in deciding whether or not to grant these
challenges. I have considered actual and implied bias with
respect to that. And again, I find no reason to grant a
challenge for cause against Lieutenant Colonel Cook.
5
United States v. Peters, No. 14-0289/AR
Standard of Review
We review implied bias challenges pursuant to a standard
that is “less deferential than abuse of discretion, but more
deferential than de novo review.” United States v. Moreno, 63
M.J. 129, 134 (C.A.A.F. 2006); United States v. Napoleon, 46
M.J. 279, 283 (C.A.A.F. 1997). Whereas a military judge can
“observe the demeanor of the court members” in order to
determine credibility in the case of actual bias, cases of
implied bias are based upon an objective test and therefore the
military judge is given less deference in such cases. United
States v. Miles, 58 M.J. 192, 194-95 (C.A.A.F. 2003).
The military judge is also mandated to err on the side of
granting a challenge. This is what is meant by the liberal
grant mandate. See United States v. Rome, 47 M.J. 467, 469
(C.A.A.F. 1998). Because “the interests of justice are best
served by addressing potential member issues at the outset of
judicial proceedings . . . . in close cases military judges are
enjoined to liberally grant challenges for cause.” United
States v. Clay, 64 M.J. 274, 277 (C.A.A.F. 2007). In other
words, if after weighing the arguments for the implied bias
challenge the military judge finds it a close question, the
challenge should be granted. This mandate stems from a long-
standing recognition of certain unique elements in the military
justice system including limited peremptory rights and the
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United States v. Peters, No. 14-0289/AR
“‘manner of appointment of court-martial members [that] presents
perils that are not encountered elsewhere.’” United States v.
James, 61 M.J. 132, 139 (C.A.A.F. 2005) (quoting United States
v. Smart, 21 M.J. 15, 19 (C.M.A. 1985)). It also serves as a
preventative measure because “it is at the preliminary stage of
the proceedings that questions involving member selection are
relatively easy to rapidly address and remedy.” Clay, 64 M.J.
at 277.
This Court has previously noted that although it “‘do[es]
not expect record dissertations’” from the military judge’s
decision on implied bias, it does require “‘a clear signal that
the military judge applied the right law.’” Id. (quoting United
States v. Downing, 56 M.J. 419, 422 (C.A.A.F. 2002)).
Incantation of the legal test without analysis is rarely
sufficient in a close case. This is a close case. Where a
military judge determines not to grant the challenge, additional
analysis on the record will better inform appellate courts in
their review and determination as to whether there was an abuse
of discretion. Downing, 56 M.J. at 422. We will afford a
military judge less deference if an analysis of the implied bias
challenge on the record is not provided. See United States v.
Bagstad, 68 M.J. 460, 462 (C.A.A.F. 2010) (citing United States
v. Richardson, 61 M.J. 113, 120 (C.A.A.F. 2005)).
7
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Implied Bias
R.C.M. 912(f)(1)(N) sets the basis for an implied bias
challenge, which stems from the “historic concerns about the
real and perceived potential for command influence” in courts-
martial. Clay, 64 M.J. at 277. Unlike the test for actual
bias, this Court looks to an objective standard in determining
whether implied bias exists. United States v. Wiesen, 56 M.J.
172, 175 (C.A.A.F. 2001). The core of that objective test is
the consideration of the public’s perception of fairness in
having a particular member as part of the court-martial panel.
Rome, 47 M.J. at 469 (C.A.A.F. 1998). In reaching a
determination of whether there is implied bias, namely, a
“perception or appearance of fairness of the military justice
system,” the totality of the circumstances should be considered.
United States v. Dale, 42 M.J. 384, 386 (C.A.A.F. 1995). While
cast as a question of public perception, this test may well
reflect how members of the armed forces, and indeed the accused,
perceive the procedural fairness of the trial as well. 2
2
At times, this Court has also cast the test as one asking
“whether most people in the same position would be prejudiced.”
Wiesen, 56 M.J. at 174 (quoting United States v. Armstrong, 54
M.J. 51, 53-54 (2000) (internal quotation marks omitted). That
may well inform the implied bias analysis, but this question is
better oriented to objectively evaluate actual bias than to
serve as the test for implied bias.
8
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Discussion
In determining whether the military judge abused his
discretion, we turn first to his reasoning for denying the
causal challenge. The military judge stated for the record that
he had considered the mandate to generously grant challenges,
but that he found “no reason to grant a challenge for cause.”
He did not, however, engage the specific grounds for challenge
of LTC Cook’s panel membership, including his relationship to
CPT Krupa. Rather, his reasoning relied solely on LTC Cook’s
demeanor and thoughtfulness in answering the voir dire
questions.
The military judge’s reasoning is problematic for two
reasons. First, we test for implied bias not on the subjective
qualities of the panel member, but on the effect that panel
member’s presence will have on the public’s perception of
whether the appellant’s trial was fair. Rome, 47 M.J. at 469.
Thus, although a panel member’s good character can contribute to
a perception of fairness, it is but one factor that must be
considered in the context of the other issues raised concerning
that individual’s panel membership. See United States v.
Strand, 59 M.J. 455, 459 (C.A.A.F. 2004) (“In making judgments
regarding implied bias, this Court looks at the totality of the
factual circumstances.”).
9
United States v. Peters, No. 14-0289/AR
Second, the well-settled law that requires military judges
to consider on the record whether to grant causal challenges
exists not merely to have the words of the test preserved on the
record, but to show that the grounds for the challenge were
given serious and careful consideration in the first instance.
Downing, 56 M.J. at 422 (“[W]here the military judge places on
the record his analysis and application of the law to the facts,
deference is surely warranted.”). Although the military judge
here said he was considering the mandate, the record does not
provide further analysis as to why, given the specific factors
in this case, the balance tipped in favor of denying the
challenge. We therefore turn next to those specific factors to
analyze whether, although absent from the military judge’s
reasoning on the record, they support the finding that there
were no grounds for granting the implied bias challenge.
The Government rightly points out, and this Court well
recognizes, that military communities and units are close-knit.
Relationships among panel members and others involved in the
case are unavoidable. We recognize it is not uncommon, nor
inappropriate, for a panel member to be acquainted
professionally with other individuals involved in the trial. As
a result, there is no per se disqualification in circumstances
where a member of a panel knows or has worked with trial counsel
or defense counsel. United States v. Hamilton, 41 M.J. 22, 25
10
United States v. Peters, No. 14-0289/AR
(C.M.A. 1994). At the same time, M.R.E. 912 generally, and the
Military Judges’ Benchbook specifically, directs counsel and
military judges to explore such contacts, to ensure that they
are not qualitatively of a sort that reflects the kind of bond
that would undermine the fairness of a proceeding or raise the
prospect of appearing to do so. See Richardson, 61 M.J. at 119
(C.A.A.F. 2005) (the Court recognized the “qualitative nature of
the relationships between trial attorneys and officers in the
commands those attorneys advise” and thus emphasized “the
importance of thorough voir dire in such circumstances”);
Bagstad, 68 M.J. at 463 (Baker, C.J., dissenting, with whom
Erdmann, J., joined); cf. Strand, 59 M.J. at 459 (the Court was
“satisfied” with the “deliberate manner of the military judge’s
voir dire” and thus did not find an abuse of discretion).
When considering all the factors, this is a case where LTC
Cook’s relationship to CPT Krupa could undermine the perception
of fairness in the proceedings. LTC Cook regularly relied upon
CPT Krupa for legal advice on military justice matters. He
trusted that legal advice and believed that CPT Krupa did good
work as a lawyer. As soon as LTC Cook was summoned to be a
court-martial panel member in this case, he sought CPT Krupa’s
input about whether it was common that someone from within the
brigade serve on a panel. Despite knowing that he would be
serving as a panel member in CPT Krupa’s case, LTC Cook also
11
United States v. Peters, No. 14-0289/AR
called CPT Krupa the night before voir dire. They did not talk
about Appellant’s case, but they did sign off the conversation
by saying “see you tomorrow.” Finally, in objecting to
Appellant’s causal challenge, CPT Krupa relied upon his personal
knowledge of LTC Cook’s character to argue on behalf of keeping
him on the panel. While the appearance would be more
problematic were the member to have shown special trust and
confidence in the integrity of the trial counsel, rather than
trial counsel in the member, CPT Krupa’s “testimonial” on behalf
of LTC Cook raised the appearance that there was a qualitative
bond between counsel and member that could undermine perceptions
of fairness. None of which is to suggest either officer did
anything wrong. We should want and wish for especially strong
bonds between judge advocates and the commanders they advise,
provided such bonds do not carry over or appear to carry over
into the trial proceedings.
The test for implied bias, however, is not whether the
panel member is subjectively a person of good character. See
Miles, 58 M.J. at 194-95. Rather, we are concerned with how the
public would perceive the fairness of a trial when, in this
case, the panel member’s relationship to trial counsel exceeds
the norm. Thus, the effect of CPT Krupa’s personal appeal to
LTC Cook’s character in opposing the implied bias challenge, in
addition to the close working relationship and phone calls
12
United States v. Peters, No. 14-0289/AR
between the two, did not serve to overcome the issue of implied
bias, but rather highlighted the grounds for why, in this case,
the public would question the fairness of Appellant’s trial.
A professional relationship between a panel member and
trial counsel is not per se a ground for granting an implied
bias challenge. Here, however, the totality of the factors
support the conclusion that Appellant had good grounds for
challenging LTC Cook’s membership based on implied bias. LTC
Cook and CPT Krupa’s relationship went beyond what would be
perceived as fair to an appellant in the context of a typical
court-martial. 3
Conclusion
Therefore, in this case, where the military judge did no
more than invoke the implied bias doctrine and where the facts
otherwise show an unusually strong bond between trial counsel
and a member of the panel, we conclude that the military judge
abused his discretion in not erring on the side of caution and
excusing LTC Cook on the ground of implied bias. The decision
of the United States Army Court of Criminal Appeals is reversed,
3
As a result, we note, but do not ultimately address the two
additional grounds for the implied bias challenge: COL
Kolasheski, who forwarded the charges, was LTC Cook’s “rater”
and MAJ Krattiger, the investigating authority in the case, was
LTC Cook’s XO. Although perhaps individually neither of these
relationships would provide a sufficient ground on which to
grant an implied bias challenge, their existence does contribute
to the totality of the factors considered in determining that
the challenge against LTC Cook should have been granted.
13
United States v. Peters, No. 14-0289/AR
and 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 authorized.
14
United States v. Peters, No. 14-0289/AR
STUCKY, Judge (dissenting):
The military judge did not err in declining to grant the
challenge for cause against LTC Cook. In the first place, the
judge did significantly more than simply invoke the liberal
grant mandate on the record; he discussed LTC Cook’s responses
to voir dire and analyzed his demeanor and impartiality in
denying the challenge. Consequently, his analysis is entitled
to deference. See United States v. Clay, 64 M.J. 274, 276
(C.A.A.F. 2007).
Second, the military judge’s decision was the correct one.
It is settled that “‘implied bias should be invoked rarely.’”
Id. at 277 (quoting United States v. Leonard, 63 M.J. 398, 402
(C.A.A.F. 2006)); see also United States v. Lavender, 46 M.J.
485, 489 (C.A.A.F. 1997) (“[A]ppellant did not carry his burden
at trial of showing that his case is the ‘rare exception’
justifying use of the implied-bias doctrine.”). In United
States v. Downing, this Court upheld a military judge’s denial
of a challenge for implied bias against a member who was a
professional colleague and friend of trial counsel, noting that
an objective observer could distinguish between that
relationship and one between “individuals whose bond of
friendship might improperly find its way into the members’
deliberation room.” 56 M.J. 419, 423 (C.A.A.F. 2002).
United States v. Peters, No. 14-0289/AR
There is no evidence in this case that the trial counsel
and LTC Cook were personal friends, or that there existed any
special bond between them that might undermine the fairness of
this court-martial. In a year’s time, trial counsel had advised
LTC Cook only “[a] dozen” times. They never discussed
Appellant’s case substantively. Further, LTC Cook specifically
affirmed at voir dire that his relationship with trial counsel
“will not affect my ability to be fair and impartial in this
case.” These facts establish that the relationship consisted of
“formal and professional” contact “not indicative of special
deference or bonding,” and that it was therefore permissible for
LTC Cook to sit on the panel. United States v. Richardson, 61
M.J. 113, 119 (C.A.A.F. 2005).
The majority states that because LTC Cook trusted the
advice of trial counsel, we should question LTC Cook’s judgment
and impartiality. United States v. Peters, __ M.J. __, __ (11-
12) (C.A.A.F. 2015). It also relies on the words, “see you
tomorrow,” as evidence of bias, as though the sign-off statement
-- following a discussion of business matters -- was indicative
of special deference or bonding. Id. at 12. And the majority
strongly criticizes trial counsel’s endorsement of LTC Cook’s
character. Peters, __ M.J. at __ (5, 12). But the military
judge explicitly and correctly disavowed consideration of trial
counsel’s endorsement, interrupting him to say: “Captain Krupa,
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United States v. Peters, No. 14-0289/AR
I’m going to stop you there. We’re not going to consider things
that haven’t been admitted in this court, okay. Your own,
outside of court, understanding of Colonel Cook is not
relevant.” Rejecting trial counsel’s assessment of LTC Cook,
the military judge made his own assessment of LTC Cook’s
demeanor and responsiveness to voir dire questions, and decided
to deny the challenge accordingly.
I also do not see how trial counsel’s relationship with the
panel member in this case is distinguishable from that in United
States v. Castillo, __ M.J. __ (C.A.A.F. 2015). There, the
trial counsel served with and provided military justice
assistance to each of the four challenged members. See id. at
__ (3-6). One member met regularly with trial counsel to
discuss ongoing military justice matters within his battalion.
Another consulted with trial counsel regarding an officer
separation board resulting from allegations of larceny and rape.
Both viewed trial counsel’s legal advice to be sound. The
majority has not explained why the relationship in Peters
“exceeds the norm,” __ M.J. at __ (12), whereas the
relationships in Castillo were so minor as to merit little
mention of their relevance to implied bias challenges.
Castillo, __ M.J. at __ (9).
Finally, the majority appears to expand the ambit of the
“public perception” test contrary to our case law by writing
3
United States v. Peters, No. 14-0289/AR
that the implied bias test “may well reflect how members of the
armed forces, and indeed the accused, perceive the procedural
fairness of the trial as well.” Peters, __ M.J. at __ (8). The
accused’s perception of the fairness of his trial has never been
part of the implied bias test.
I agree that it is proper for counsel and military judges
to explore professional contacts between panel members and trial
or defense counsel, id. at __ (10-11), and in other
circumstances such relationships might result in findings of
implied bias. But this is not such a case. Under these
circumstances, a public observer familiar with the military
justice system would not doubt the fairness of the trial solely
because of this professional relationship. I would affirm.
4
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RYAN, Judge (dissenting):
I agree with Judge Stucky that the military judge
recognized and applied the correct law and engaged in voir dire
to explore the relationship between trial counsel and the
challenged member. Under our precedent he, therefore, did not
abuse his discretion. United States v. Clay, 64 M.J. 274, 277
(C.A.A.F. 2007); United States v. Napoleon, 46 M.J. 279, 283
(C.A.A.F. 1997). Although one might, as the majority does,
conclude that another course of action would have been more
appropriate, de novo review has never before been the standard
of review where the military judge clearly recognized the
correct law and made no erroneous factual determination. See,
e.g., United States v. Armstrong, 54 M.J. 51, 54 (C.A.A.F.
2000). It is unclear to me what level of excruciating detail
the majority now requires of the trial judiciary when denying a
member challenge. They do not have the luxury of time afforded
appellate courts.
While a bright-line rule excluding members on the basis of
implied bias where the trial counsel has advised the member
might, as an empirical matter, be viewed as only fair by an
objective member of the public, we rejected such a rule long
ago. United States v. Rome, 47 M.J. 467, 469 (C.A.A.F. 1998)
(holding a member’s “professional relationship with the trial
counsel was not per se disqualifying”); United States v.
United States v. Peters, 14-0289/AR
Hamilton, 41 M.J. 22, 25 (C.M.A. 1994) (finding no “per se
ground for challenge” where three members had received legal
assistance from the assistant trial counsel); see also United
States v. Castillo, __ M.J. __, __ (1-2) (C.A.A.F. 2015) (Ryan,
J., concurring in the result).
I respectfully dissent.
2