United States v. Clay , 64 M.J. 274 ( 2007 )

UNITED STATES, Appellee
v.
Jermaine M. CLAY, Private First Class
U.S. Marine Corps, Appellant
No. 05-0779
Crim. App. No. 200101952
United States Court of Appeals for the Armed Forces
Argued October 17, 2006
Decided January 25, 2007
BAKER, J., delivered the opinion of the Court, in which EFFRON,
C.J., and ERDMANN, J., joined.
STUCKY and RYAN, JJ., did not participate.
Counsel
For Appellant: Lieutenant Richard H. McWilliams, JAGC, USNR
(argued); Lieutenant Robert Salyer, JAGC, USN (on brief).
For Appellee: Major Wilbur Lee, USMC (argued); Commander
Charles N. Purnell II, JAGC, USN, (on brief); Colonel Ralph F.
Miller, USMC, and Lieutenant Kathleen A. Helmann, JAGC, USNR
Military Judge: P. J. McLaughlin
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Clay, No. 05-0779/MC
Judge BAKER delivered the opinion of the Court.
Appellant was tried by a general court-martial composed of
officer and enlisted members. Contrary to his pleas, he was
convicted of one specification of rape and two specifications of
indecent assault in violation of Articles 120 and 134, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. §§ 920, 934 (2000).
The adjudged sentence included a dishonorable discharge,
confinement for ten years, forfeiture of all pay and allowances,
and reduction to E-1. The convening authority approved the
sentence as adjudged. The court below affirmed. United States
v. Clay, No. NMCCA 200101952 (N-M. Ct. Crim. App. July 29,
2005).
On Appellant’s petition, we granted review of the following
issue:
WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE
DENIED THE DEFENSE CHALLENGE FOR CAUSE AGAINST COLONEL [J],
A MEMBER DETAILED TO THE COURT-MARTIAL PANEL, WHO
DEMONSTRATED A DRACONIAN AND INELASTIC ATTITUDE TOWARD
SENTENCING.
BACKGROUND
Appellant, an E-2, was accused of raping and indecently
assaulting a female Marine lance corporal, and of indecently
assaulting a female Marine private first class.
Appellant’s court-martial consisted of eight members, four
officers and four enlisted personnel. The senior member
selected to serve on the panel was Colonel (Col) J. On voir
2
United States v. Clay, No. 05-0779/MC
dire, Col J was asked whether his ability to judge the case
would be affected by the fact that he had two daughters. In
response, Col J stated:
I will objectively view the case; but let me be very
candid. I have a 15-year[-]old daughter and a 7-year[-]old
daughter who I would protect with my life; and if I
believed beyond a reasonable doubt that an individual were
guilty of raping a young female, I would be merciless
within the limit of the law.
Emphasis added. Upon further questioning by trial counsel,
the following exchange took place:
TC: Colonel, as far as the case in front of you today, are
you saying that the fact that you have two daughters would
prevent you from viewing the evidence presented to you in
court objectively?
[Col J]: No, I’m not saying that at all. I’m just saying
that I view that particular offense, should an individual
be guilty of that offense, as being as serious [an] offense
as I can think of.
TC: But you are basically saying that at this moment, you
do presume the accused to be innocent in this case?
[Col J]: Yes.
TC: And you would wait until there was evidence presented
to see if the government has met its burden of proof?
[Col J]: Absolutely.
TC: Let’s assume, sir, that there is a sentencing phase in
this case, the judge would instruct you that you would have
to be able to consider the entire range of punishments that
this court-martial may lawfully impose as a punishment and
that would include from the maximum punishment available
down the scale to one of the appropriate punishments could
be no punishment. But you are required to at least
consider those and that would depend on obviously
sentencing evidence, aggravation evidence, extenuation and
mitigation. Do you understand that?
3
United States v. Clay, No. 05-0779/MC
[Col J]: Yes, I do.
TC: At the beginning point you would have to have an
elastic view toward sentencing to be able to view the full
range of punishments. Could you do that, sir?
[Col J]: I believe I could. I just wanted to be candid
about my own moral convictions with regard to this.
TC: My direct question, sir, is that if the judge directed
you that you’re required as a matter of law to consider the
entire range of punishments, would you do that?
[Col J]: I would do so.
Emphasis added. Based on this exchange, Appellant
challenged Col J for cause. The military judge denied the
challenge without explanation. Appellant exercised his sole
peremptory challenge against Col J. He preserved this issue for
appeal by stating that he would have used his peremptory
challenge against another court member had the challenge for
cause against Col J been granted. See Rule for Courts-Martial
(R.C.M.) 912(f)(4).
DISCUSSION
It is settled law that a military judge should grant a
challenge for cause not only where a court member demonstrates
an inelastic disposition concerning an appropriate sentence for
the offenses charged, but also where the presence of that member
on the panel would create an objective appearance of unfairness
in the eyes of the public. R.C.M. 912(f) Discussion; United
States v. Giles, 48 M.J. 60, 62-63 (C.A.A.F. 1998). The
4
United States v. Clay, No. 05-0779/MC
question in this case, is whether Col J’s responses during voir
dire created an objective perception that Appellant would not
receive a fair sentence determination and whether the military
judge should have granted an implied bias challenge.
The Government contends, and the lower court agreed, that
the military judge did not abuse his discretion because Col J
did not display either actual or implied bias in favor of a
harsh sentence in all cases of rape. Clay, No. NMCCA 200101952,
slip op. at 4. In the lower court’s words, Col J’s “notion of
appropriate punishment was made as the father of two daughters,
the eldest of whom was 15, and applied specifically to ‘an
individual . . . guilty of raping a young female.’ His premise
did not apply in this case, where the victim was an adult
marine.” Id. Appellant argues, as he did at trial, that Col J’s
responses during voir dire exhibited an inelastic disposition on
sentencing. According to Appellant, based on either actual or
implied bias, the military judge erred by not dismissing Col J
for cause.
R.C.M. 912(f)(1)(N) requires the removal of a court member
“in the interest of having the court-martial free from
substantial doubt as to legality, fairness and impartiality.”
This rule encompasses both actual and implied bias. United
States v. Strand, 59 M.J. 455, 458 (C.A.A.F. 2004). Actual and
implied bias are “separate legal tests, not separate grounds for
5
United States v. Clay, No. 05-0779/MC
challenge.” United States v. Armstrong, 54 M.J. 51, 53
(C.A.A.F. 2000).
Because a challenge based on actual bias involves judgments
regarding credibility, and because “the military judge has an
opportunity to observe the demeanor of court members and assess
their credibility during voir dire,” a military judge’s ruling
on actual bias is afforded great deference. United States v.
Daulton, 45 M.J. 212, 217 (C.A.A.F. 1996). In light of Col J’s
statements on the record that he could be fair, and the military
judge’s observations of those statements, the issue in this case
is not one of actual bias, but one of implied bias, and in
particular, the application of the liberal grant mandate.
Implied bias is an objective test, “viewed through the eyes
of the public, focusing on the appearance of fairness.” United
States v. Rome, 47 M.J. 467, 469 (C.A.A.F. 1998). Accordingly,
a military judge’s ruling on implied bias, while not reviewed de
novo, is afforded less deference than a ruling on actual bias.
Strand, 59 M.J. at 458. Further, in light of the role of the
convening authority in selecting courts-martial members and the
limit of one peremptory challenge per side, military judges are
enjoined to be liberal in granting defense challenges for cause.
United States v. Moreno, 63 M.J. 129, 134 (C.A.A.F. 2006).
Challenges based on implied bias and the liberal grant mandate
6
United States v. Clay, No. 05-0779/MC
address historic concerns about the real and perceived potential
for command influence on members’ deliberations.1
The liberal grant mandate has been recognized since the
promulgation of the Manual for Courts-Martial, United States
(1951 ed.). See United States v. White, 36 M.J. 284, 287
(C.M.A. 1993). Recently, this Court stated “[a]gain, we note
that this Court has enjoined military judges to follow a liberal
grant mandate in evaluating challenges for cause.” United
States v. Leonard, 63 M.J. 398, 402 (C.A.A.F. 2006). We
emphasized the same point in Moreno when we stated that
“‘[m]ilitary judges must follow the liberal-grant mandate in
ruling on challenges for cause’ asserted by an accused. . . .
Thus, we will overturn a military judge’s ruling on an accused’s
challenge for cause where he clearly abuses his discretion in
applying the liberal grant mandate.” 63 M.J. at 134 (citations
omitted). 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. “We 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
1
The criteria for member selection specified by Article 25,
UCMJ, 10 U.S.C. § 825 (2000), and challenges for cause based on
R.C.M. 912(f) are additional safeguards against both the reality
and perception of unfairness.
7
United States v. Clay, No. 05-0779/MC
application of the law to the facts, deference is surely
warranted.” United States v. Downing, 56 M.J. 419, 422
(C.A.A.F. 2002).
In short, the liberal grant mandate is part of the fabric
of military law. The mandate recognizes that the trial
judiciary has the primary responsibility of preventing both the
reality and the appearance of bias involving potential court
members. To start, military judges are in the best position to
address issues of actual bias, as well as the appearance of bias
of court members. Guided by their knowledge of the law,
military judges observe the demeanor of the members and are
better situated to make credibility judgments. However, implied
bias and the liberal grant mandate also recognize that the
interests of justice are best served by addressing potential
member issues at the outset of judicial proceedings, before a
full trial and possibly years of appellate litigation. The
prompt resolution of member challenges spares the victim the
potential of testifying anew, the government the expense of
retrial, as well as society the risk that evidence (in
particular witness recollection) may be lost or degraded over
time. As a result, in close cases military judges are enjoined
to liberally grant challenges for cause. It is at the
preliminary stage of the proceedings that questions involving
8
United States v. Clay, No. 05-0779/MC
member selection are relatively easy to rapidly address and
remedy.
This Court has stated that in the absence of actual bias,
“implied bias should be invoked rarely.” Leonard, 63 M.J. at
402 (citations and quotations marks omitted); Strand, 59 M.J. at
458 (citations and quotations marks omitted); Rome, 47 M.J. at
469 (citation omitted); United States v. Lavender, 46 M.J. 485,
488 (C.A.A.F. 1997). Taken at face value, that statement could
be construed to be at odds with the liberal grant mandate. The
statement, however, is not a reflection of a legal doctrine
expressing judicial reticence or disdain for the finding of
implied bias. Instead, the statement reflects that where actual
bias is found, a finding of implied bias would not be unusual,
but where there is no finding of actual bias, implied bias must
be independently established.
It follows that in the absence of actual bias, where 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, instances in which the
military judge’s exercise of discretion will be reversed will
indeed be rare. In such circumstances, what might appear a
close case on a cold appellate record, might not appear so close
when presented from the vantage point of a military judge
observing members in person and asking the critical questions
9
United States v. Clay, No. 05-0779/MC
that might fill any implied bias gaps left by counsel. On the
other hand, we have not hesitated to find implied bias where
warranted. See e.g., Leonard, 63 M.J. at 403; United States v.
Wiesen, 56 M.J. 172, 177 (C.A.A.F. 2001).
This is a close case, and there is no record that the
military judge considered implied bias or the liberal grant
mandate. Thus, there is no record regarding whether, how, and
with what nuance, the military judge applied the principles
embodied in the implied bias doctrine.
On the one hand, Col J stated any number of times that he
presumed Appellant was innocent and would look at the evidence
objectively. When pressed on these points, he stuck to his
guns. On paper, Col J’s reference to his young daughters might
suggest an emotive content to his answers that may have been
less apparent in person.
On the other hand, Col J did not say that his beliefs about
the appropriate sentence were limited to cases involving girls
fifteen years and younger, as the lower court suggests. He said
that he would be “merciless” to someone he found guilty of
raping a “young female.” When trial counsel sought to
“rehabilitate” Col J regarding a possible inelastic attitude on
sentencing, Col J agreed that Appellant was presumed innocent
and that Col J would hold the Government to its burden of proof,
but he also returned to his earlier theme. Asked if he could
10
United States v. Clay, No. 05-0779/MC
still view the evidence objectively, Col J volunteered his
belief that rape was “as serious [an] offense as I can think
of.” When asked whether he could have an “elastic” view toward
sentencing and consider the full range of sentences, Col J
responded equivocally, saying “I believe I could.” Again, he
volunteered commentary about his “moral convictions” regarding
the crime of rape. In this context, these statements dilute Col
J’s agreement that he would “consider the entire range of
punishments” if the military judge directed him to do so “as a
matter of law.” His answers, taken together, create the
perception that if Col J, the senior member of the panel, were
convinced of Appellant’s guilt he would favor the harshest
sentence available, without regard to the other evidence.
Based on these factors and the record before this Court, we
conclude that the military judge erred in denying the challenge
for cause against Col J and abused his discretion by not
2
applying the liberal grant mandate to the challenge.
DECISION
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is reversed and the findings and sentence
2
Although military or national security exigencies may create
personnel circumstances relevant to the liberal grant analysis,
there is no indication in the record that this was the reason
for the military judge’s denial of Appellant’s challenge for
cause.
11
United States v. Clay, No. 05-0779/MC
are set aside. The record of trial is returned to the Judge
Advocate General of the Navy. A rehearing may be authorized.
12