United States v. Dockery , 76 M.J. 91 ( 2017 )

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Joseph R. DOCKERY III, Master Sergeant
United States Air Force, Appellant
No. 16-0296
Crim. App. No. 38624
Argued October 25, 2016—Decided February 14, 2017
Military Judges: William Muldoon and Gregory Friedland
For Appellant: Major Lauren A. Shure (argued); Colonel
Jeffrey G. Palomino.
For Appellee: Major Mary Ellen Payne (argued); Colonel
Katherine E. Oler and Gerald R. Bruce, Esq. (on brief).
Chief Judge ERDMANN delivered the opinion of the
court, in which Judges STUCKY and RYAN joined.
Judge SPARKS filed a separate concurring opinion in
which Judge OHLSON joined.
_______________
Chief Judge ERDMANN delivered the opinion of the
court.
Contrary to his pleas, a general court-martial panel
composed of officer and enlisted members convicted Master
Sergeant Joseph R. Dockery III of sexual assault and
adultery, in violation of Articles 120 and 134, Uniform Code
of Military Justice (UCMJ), 10 U.S.C. §§ 920, 934 (2012).
The panel sentenced Dockery to one year of confinement and
a reduction to E-4. The convening authority approved the
sentence as adjudged and the United States Air Force Court
of Criminal Appeals (AFCCA) affirmed the findings and
sentence.
Rule for Courts-Martial (R.C.M.) 912(f)(1)(N) provides
that a court-martial panel member shall be excused for
cause whenever it appears that the member “[s]hould not sit
as member in the interest of having the court-martial free
from substantial doubt as to legality, fairness, and
impartiality.” We granted review in this case to determine
whether the military judge erred when he removed a
United States v. Dockery, No. 16-0296/AF
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challenged member on the basis of implied bias and, if the
removal was in error, whether a prejudice analysis was
appropriate. 1 We hold that the military judge erred in his
determination that implied bias existed in regard to the
challenged member. We further hold that a prejudice
analysis is required in this situation and that Dockery was
not prejudiced by the error. Therefore, we reverse the
decision of the AFCCA to the extent that it affirmed the
military judge’s determination of implied bias, but uphold
the lower court’s holding that Dockery suffered no material
prejudice due to the error.
Background
The underlying facts which form the basis of the charges
in this case are not at issue in this appeal. The case before
us arises out of the military judge’s sua sponte removal of a
panel member on the basis of implied bias.
Prior to voir dire, the military judge was informed that
one of the panel members, Senior Master Sergeant (SMSgt)
DC, was listed as a witness on the defense’s witness list.
When questioned by the military judge as to his knowledge
of the case, SMSgt DC responded that he had an intimate
knowledge of the case and the facts surrounding it. When
asked if he believed it would be appropriate for him to sit on
the panel, SMSgt DC answered, “No, sir, I do not.” SMSgt
DC confirmed that he had not discussed any details of the
case with any other members.
1 We granted review of the following issues:
I. Whether the military judge erred by granting,
over the defense objection, the government’s
challenge for cause against MSgt LW.
II. Whether the Air Force Court of Criminal
Appeals erred by finding that the military judge did
not err, and by concluding that even if the military
judge did err there was no prejudice, contrary to
this court’s precedent in United States v. Peters, 74
M.J. 31 (C.A.A.F. 2015), United States v. Woods, 74
M.J. 238 (C.A.A.F. 2015), United States v. Nash, 71
M.J. 83 (C.A.A.F. 2012), United States v. Clay, 64
M.J. 274 (C.A.A.F. 2007), and United States v.
Dale, 42 M.J. 384 (C.A.A.F. 1995).
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Both the defense and trial counsel agreed that SMSgt
DC, who was African American, should be excused for actual
bias and he was subsequently released by the military judge.
When reading the composition of the court in the presence of
the members, trial counsel noted that SMSgt DC had been
excused by the military judge.
During individual voir dire, the trial counsel asked
Master Sergeant (MSgt) LW if she had had any sexual
assault training. She stated that, as a junior enlisted
airman, she had volunteered at a rape crisis center, which
entailed her sitting with women in medical facilities as they
awaited and underwent medical examination for sexual
assault. The trial counsel then asked about her positive
response during group voir dire to the defense counsel’s
question concerning intoxication and whether slurred speech
meant an individual could not consent to sex. He was able to
get MSgt LW to agree that she would not automatically base
her decision on slurred speech, but would consider all the
facts about the individual’s condition and the military
judge’s instructions on consent.
Later, during the individual voir dire of MSgt LW, the
following colloquy occurred:
[DC:] Okay. I’m going to go into some questions
that I didn’t ask when all you guys were on the
panel, and we think the evidence in this case is
going to show that Master Sergeant Dockery had
sexual intercourse with Ms. [AR]. Master Sergeant
Dockery, as you can see, is black, and you’ll see
that Ms. [AR] is white. Do you have any strong
opinions on interracial relationships or interracial
sex, anything like that?
[MSgt LW:] I certainly don’t. I’m Hispanic myself,
black and Hispanic. So to me that has absolutely
nothing to do with anything.
....
[DC:] Okay. The last question I have for you is,
knowing we’re dealing with a sexual assault, which
is obviously a very important topic, and Master
Sergeant Dockery’s career and future are—you
know—hanging on this, knowing those facts, if you
were in his shoes right now, would you want
someone like you on this jury?
[MSgt LW:] I would think yes, be fair, not from
nothing, but for some reason an African American
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person already got dismissed, so really I would
think—not that it wouldn’t be—oh god—I would
say yes. You would want—you would want
somebody like me to be fair for both parties, to
judge. I will think that I will be fair, listening to all
the facts, either way.
....
[DC:] [A]ny other things in terms of you thinking
you’d be a good fit for the panel, you would want
somebody like you if you were in that position?
Anything else beyond what you’ve already said?
[MSgt LW:] If I was in a position of—
[DC:] Yeah, if—would you want somebody like you
on a jury if you were in that position? You
discussed your ability to be fair. I was just curious
if there was anything else.
[MSgt LW:] No, sir. I think I’ll be fair.
[DC:] Okay, all right, thank you so much.
[MSgt LW:] No problem.
[MJ:] Trial Counsel, any follow up questions?
[TC:] Briefly, Your Honor. [MSgt LW], I just
wanted to clarify one thing that you just said. You
made a comment, I believe—maybe I heard it
incorrectly—you made a comment when he asked
you about whether or not you could be fair, you
made a comment about one person had already
gotten dismissed, or one African American already
got dismissed. Is that what you stated?
[MSgt LW:] Yes, sir.
[TC:] What were you—what was your point, or
what—are you concerned that he was dismissed
and that he’s African American?
[MSgt LW:] No, sir, no. Just if—well, I don't
know—I’m assuming there’s supposed to be 12
individuals, and I was just wondering if—you
know—if he was going to be replaced.
....
[TC:] Sir, would you mind instructing her on that?
[MJ:] Sure, I can do that. So, for military courts,
there’s no requirement to have 12 folks. The
minimum requirement is five. Okay? So it’s
different than what you see on TV, and what you
see in the movies on Netflix or Hulu. So for any
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number of reasons, me, as the military judge can
excuse court members for a number of reasons. And
there was an issue that was brought up to me, I
made a judgment call as the military judge, sort of
like an official on a football—called an official time
out and I said, “You know what? This person is not
going to sit on the panel as a juror.”
[MSgt LW:] Okay, sir.
[MJ:] You are not to speculate as to why I excused
that person from the panel. Don’t try to infer any
particular reason why that person was excused
from the panel. It’s just because my job is to make
sure this trial is conducted in a fair, orderly, and
impartial manner, and so that’s what I did.
So, with that information coming from me as the
military judge, does that affect any comments or
thoughts you have about your ability to sit on this
panel as a court member?
[MSgt LW:] No, sir.
[MJ:] Okay. You think you can be fair to both sides?
[MSgt LW:] Yes, definitely, sir.
After the individual voir dire of all of the members, the
government moved to strike MSgt LW for “actual bias
against the prosecution, or the government.” Defense
counsel objected. The military judge asked each side for
their positions in regard to this challenge:
[TC:] Yes, sir. It was the comment she made about
that seemed like she didn’t really intend for it to
slip out, but she seemed to believe that—she
expressed basically the fact that she kind of felt
like she needed to protect the accused, or kind of
battle for him because we’d already excused one
black member. It seemed to indicate that she had a
bias in his favor along racial lines. Not—no
malicious intent there, but it seemed to express a
bias and a belief that there might be some sort of
conspiracy on the part of the government to get rid
of minority members on the panel.
So the government can’t be comfortable that she is
not biased in favor of the accused and against us
because of that statement, despite the fact that
obviously I know you clarified and gave her a lot
more background about that challenge—or that
excusal I guess I should say. Still, the fact that
that’s what she expressed, and then she seemed to
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want to backtrack from that when she realized
what she said.
That’s our basis for challenging her for actual bias.
[MJ:] All right. Defense Counsel, what’s your
position?
[DC:] Your Honor, the—once you’re able to flesh it
out, it seemed her confusion in the statement was
rising from they were dealing with 11 and she had
it in her mind that, like a civilian jury, there had to
be 12. Once you clarified that—you know—12
wasn’t the fixed number and that wasn’t a problem,
she seemed immediately to get it. You asked if she
had any issue in terms of fairness, all of that, she
said she definitely was going to be fair. Did not
indicate anything firm in terms of racial bias or
anything like that. I think this was simply her just
being confused in terms of military justice
procedure and what it meant when [SMSgt DC]
was excused from the panel. There was [sic] no
explicit statements about protecting him on racial
lines or other lines. It completely was a matter of
straight confusion, which the court, when they voir
dire’d [sic] her, sufficiently resolved.
[MJ:] Okay. Thanks. All right, I’ve considered her
responses. While I don’t find an actual bias, on the
part—I think that was cleared up by my
instructions to her, I do find that there is implied
bias on the part of [MSgt LW] from her utterance
without any precipitating factors there, and so
given that I find implied bias, the challenge against
[MSgt LW] is granted. So she will be excused.
At his court-martial, Dockery was found guilty of one
specification of sexual assault and one specification
adultery. On appeal to the AFCCA, Dockery alleged six
assignments of error, which included the military judge’s
grant of the challenge for cause of MSgt LW. United States
v. Dockery, No. ACM 38624, 2015 CCA LEXIS 540, at *1, *5,
2015 WL 9594508, at *1-2 (A.F. Ct. Crim. App. Dec. 2, 2015)
(unpublished).
The AFCCA found that the military judge did not err in
excusing MSgt LW for implied bias because she raised the
issue of race in her “unsolicited response” to a voir dire
question. 2015 CCA LEXIS 540, at *12, 2015 WL 9594508,
at *5. The lower court concluded that MSgt LW’s response
demonstrated a racial bias that would cause a reasonable
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member of the public to question the fairness of the trial
were MSgt LW to sit as a member. 2015 CCA LEXIS 540, at
*13, 2015 WL 9594508, at *5. The AFCCA went on to find
that, even assuming that the excusal of MSgt LW was in
error, it was harmless beyond a reasonable doubt. 2015 CCA
LEXIS 540, at *14, 2015 WL 9594508, at *5. As Dockery had
made no complaint as to the qualifications of the members
that did sit on his panel and because there was no reason to
believe a different “mix” of members would have yielded a
more favorable result, the lower court held that Dockery did
not suffer any material prejudice. 2015 CCA LEXIS 540, at
*15-16, 2015 WL 9594508, at *6 (citing United States v.
Newson, 29 M.J. 17, 21 (C.M.A. 1989)).
Issue I
The first issue is whether the military judge erred in
granting the challenge of MSgt LW on implied bias grounds.
Dockery argues that the military judge erred in granting
the government’s challenge because it was based upon a
misinterpretation of MSgt LW’s statements. He argues that
this is evidenced by MSgt LW’s statements that she would
be fair to both parties and that her other statements were
far from demonstrating any racial bias. Dockery asserts that
MSgt LW’s answer regarding her race was an appropriate
response to the question “would you want somebody like you
on this jury?” (Emphasis added.) Dockery argues MSgt LW
reasonably could have interpreted this question as including
a reference to her race. Finally, he argues that, since the
only other African American member of the panel had been
excused, it was reasonable for MSgt LW to believe a racially
diverse panel was desirable.
The government responds by asserting that the military
judge did not plainly err in his implied bias analysis.
According to the government, MSgt LW’s “unprompted
expression of concern” about the excusal of SMSgt DC led to
the reasonable inference that she would be biased in favor of
Dockery. Further, the government argues that if MSgt LW
had remained on the panel, there would have been too great
of a risk that a member of the public would have questioned
the fairness of the court-martial. 2
2 Both parties discussed the application of Batson v. Kentucky, to
this case. 476 U.S. 79 (1986) (holding that a criminal defendant’s
rights under the Equal Protection Clause are violated if the
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Discussion
This court reviews 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.
Peters, 74 M.J. 31, 33 (C.A.A.F. 2015) (citations omitted)
(internal quotation marks omitted). An abuse of discretion
has occurred “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. Quintanilla, 63
M.J. 29, 35 (C.A.A.F. 2006) (citation omitted).
A “military judge’s ruling on a challenge for cause is
given great deference.” United States v. Rolle, 53 M.J. 187,
191 (C.A.A.F. 2000) (citation omitted) (internal quotation
marks omitted). Although it is not required for a military
judge to place his or her implied bias analysis on the record,
doing so is highly favored and warrants increased deference
from appellate courts. United States v. Clay, 64 M.J. 274,
277 (C.A.A.F. 2007) (recognizing the “vantage point of a
military judge observing members in person and asking the
critical questions that might fill any implied bias gaps left
by counsel.”). We have noted that although “[w]e do not
expect record dissertations” from the military judge’s
decision on implied bias, we do require “a clear signal that
the military judge applied the right law.” Id. (citation
omitted) (internal quotation marks omitted). However, a
mere “[i]ncantation of the legal test [for implied bias]
without analysis is rarely sufficient in a close case.” Peters,
74 M.J. at 34. “In cases where less deference is accorded, the
analysis logically moves more towards a de novo standard of
review.” United States v. Rogers, 75 M.J. 270, 273 (C.A.A.F.
2016).
R.C.M. 912(f)(1)(N) applies to both implied and actual
bias. 3 United States v. Daulton, 45 M.J. 212, 216-17
government uses a preemptory challenge to strike jurors on
account of their race). However, the federal circuits have not
applied Batson to challenges for cause, which was the basis for the
challenge in this case. See, e.g., United States v. Elliott, 89 F.3d
1360, 1364-65 (8th Cir. 1996) (“We know of no case that has
extrapolated the Batson framework to for-cause strikes.”).
3 While the government initially challenged MSgt LW for actual
bias, the military judge denied the challenge, finding that his
instructions to MSgt LW remedied any actual bias that may have
been present. As neither party disputes that portion of the
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(C.A.A.F. 1996). Implied bias challenges stem from the
“historic concerns about the real and perceived potential for
command influence” in courts-martial. Clay, 64 M.J. at 276-
77. “Implied bias exists when most people in the same
position as the court member would be prejudiced.” United
States v. Elfayoumi, 66 M.J. 354, 356 (C.A.A.F. 2008). It is
evaluated objectively under the totality of the circumstances
and “ ‘through the eyes of the public,’ reviewing ‘the
perception or appearance of fairness of the military justice
system.’ ” Id. (quoting United States v. Townsend, 65 M.J.
460, 463 (C.A.A.F. 2008)). “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.” Peters, 74 M.J. at 34.
After denying the government’s actual bias challenge,
the military judge found that MSgt LW’s responses
constituted implied bias because her “utterance” was made
“without any precipitating factors.” The military judge
granted the challenge against MSgt LW with no further
discussion or explanation. From this record it is impossible
for us to determine whether the military judge considered
and applied the well-established standards for analyzing an
implied bias challenge. We cannot know if the military judge
viewed MSgt LW’s statements under the totality of the
circumstances or whether he even considered the public’s
perception as to the fairness of the trial were MSgt LW to
remain on the panel. As the military judge did not put any
analysis on the record, this court need not afford his ruling
much deference. See Clay, 64 M.J. at 277 (citing United
States v. Downing, 56 M.J. 419, 422 (C.A.A.F. 2002)).
The context of MSgt LW’s statements shed light on the
motivations for her responses. She was asked by defense
counsel if she had any “strong opinions on interracial
relationships or interracial sex,” as Dockery was African
American and the victim was Caucasian. MSgt LW indicated
she did not hold any strong opinions because she was
African American and Hispanic. Almost immediately
following this question, defense counsel asked, “[I]f you were
in [Dockery’s] shoes right now, would you want somebody
like you on this jury?” (Emphasis added.) MSgt LW
military judge’s ruling, we need only address the military judge’s
sua sponte implied bias ruling.
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answered that she would want herself on the panel if she
were in Dockery’s position because she would be fair and “for
some reason an African American person already got
dismissed, so . . . you would want somebody like me to be fair
for both parties.” (Emphasis added.)
The highlighted language is the portion of MSgt LW’s
response that the military judge relied on in finding
evidence of an appearance of racial bias. 4 As MSgt LW had
just been asked about interracial relationships, the phrase
“somebody like you” could reasonably be interpreted as
including a reference to her race. Contrary to the military
judge’s findings, it was not MSgt LW who initially injected
race into the voir dire process, but rather it was defense
counsel’s questions.
When trial counsel later asked MSgt LW if she was
concerned that an African American panel member had been
excused, she answered that she was not concerned that
SMSgt DC was African American, but rather that she
thought there were supposed to be twelve members and she
was wondering if he would be replaced. The military judge
resolved MSgt LW’s misunderstanding as to the number of
panel members required by providing an appropriate
instruction. MSgt LW reiterated she would listen to all of
the facts and would judge them fairly. She clearly indicated
more than once that she would be fair to both sides.
While the government argued at trial that MSgt LW’s
response indicated that she “needed to protect” Dockery, or
“battle for him,” that was not the basis of the military
judge’s ruling. The only basis in the record for the implied
bias ruling is that MSgt LW had brought up the issue of race
“without any precipitating factors.” However, as previously
noted, the record reflects that it was not MSgt LW who
initially raised the issue of race in this proceeding but rather
the defense counsel.
4 The AFCCA noted that this “initial response may have been
motivated solely by [MSgt LW’s] interest in racial diversity” but
added that “her ambiguous reply to trial counsel’s attempt to
clarify her position further buttresses a theory supporting the
finding of implied bias.” 2015 CCA LEXIS 540, at *13-14, 2015 WL
9594508, at *5.
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Reviewing the totality of the circumstances, we do not
believe that MSgt LW’s inclusion on the court-martial panel
would have caused the public to perceive unfairness within
the military justice system. In this circumstance, a panel
member simply making a reference to race does not create
either the reality or appearance of racial bias. We
consequently hold that the military judge erred when he
excused MSgt LW on the basis of implied bias.
Issue II
We now turn to the second issue in this case, which is
whether the AFCCA erred by: (1) upholding the military
judge’s challenge for cause ruling; and (2) holding that even
if the military judge erred, Dockery suffered no material
prejudice. 2015 CCA LEXIS 540, at *15-16, 2015 WL
9594508, at *5-6. Because we conclude that the military
judge erred when he granted the challenge against MSgt LW
on implied bias grounds, we similarly hold that the AFCCA
erred when it upheld that determination. Our prejudice
analysis, however, is complicated by the procedural posture
of this case. 5
Dockery asserts that the AFCCA incorrectly determined
that any implied bias error was harmless beyond a
reasonable doubt. He argues that this court has never
required an appellant to show prejudice when a military
judge improperly grants a challenge for cause under the
implied bias standard. He further argues that requiring him
to demonstrate actual prejudice is impossible, as there is no
actual manifestation of bias when determining implied bias.
He therefore contends that he cannot show any actual
prejudicial impact, but only “an appearance of impropriety.”
The government counters that the AFCCA did not err by
testing for prejudice. The government explains that this
court’s case law as to implied bias, which does not require a
showing of actual prejudice, is distinguishable from this
case. Specifically, the government asserts that those cases
involve the failure to excuse a panel member for cause,
rather than the erroneous excusal of a panel member. See,
e.g., Peters, 74 M.J. at 32; United States v. Nash, 71 M.J. 83
(C.A.A.F. 2012); Clay, 64 M.J. at 275; United States v. Dale,
42 M.J. 384 (C.A.A.F. 1995).
5 We note that both parties agreed that structural error was not
present in this case.
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Discussion
Whether a lower court utilized the appropriate standard
to test for prejudice is a question of law reviewed de novo.
United States v. Evans, 75 M.J. 302, 304 (C.A.A.F. 2016).
In a typical case involving actual bias, an appellant
appeals the denial of a challenge for cause and argues the
challenged member’s participation on the panel resulted in
material prejudice. See Peters, 74 M.J. at 34; Woods, 74 M.J.
at 243; United States v. Terry, 64 M.J. 295, 302-04 (C.A.A.F.
2007). When implied bias is the basis for an appeal of a
denied challenge, the appellant similarly argues that the
challenged member should have been removed. See Woods,
74 M.J. at 243-44. However, instead of arguing prejudice,
the appellant asserts that, because the member remained on
the panel, a reasonable member of the public would question
the fairness of the court-martial. Id.
In this case, the military judge sua sponte granted the
government’s actual bias challenge of MSgt LW on the basis
of implied bias, which arose from her alleged racial bias. 6
The unstated implication of the military judge’s ruling was
that the inclusion of MSgt LW on the panel would cause the
public to perceive that the military justice system was
unfair. Because Dockery has successfully argued on appeal
that the implied bias ruling was in error, the issue before us
now concerns whether he must establish that he suffered
prejudice as a result of that error.
Dockery contends that the military judge’s implied bias
ruling was erroneous and has asked us to reverse that
ruling. However, asking this court to reverse a ruling of
implied bias does not place Dockery in the same position as
an appellant who has brought a successful implied bias
challenge, and therefore does not eliminate the need for
Dockery to establish that he was prejudiced from the error.
Dockery has not based his request for a reversal on the
presence of implied bias. To the contrary, Dockery’s appeal
is based on just the opposite – that implied bias did not
exist.
6“[W]here 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.” Clay, 64 M.J. at 277.
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Dockery argues that failing to include MSgt LW was
error – but he does not argue that any member on that panel
was impliedly biased. This places Dockery in a much
different position than an appellant in a typical implied bias
case where the issue is the inclusion of an impliedly biased
member, which could raise doubt about the fairness of the
trial in the public’s mind. As the government has noted,
there is a difference between the failure to remove a biased
member who sat on a panel that tried an accused, and the
erroneous removal of an unbiased member from a panel,
where there is no challenge to the ultimate makeup of the
panel.
The ultimate interest that Dockery seeks to protect is
that he received a fair and impartial panel. Both this court
and Article III courts have required an appellant to make a
showing of prejudice under similar situations. For example,
in the capital case of Quintanilla, we held that the military
judge erroneously granted a government challenge for cause
against a panel member. 63 M.J. at 36. In our analysis, we
looked to whether the appellant had been prejudiced and
ultimately denied relief, noting that there had “been no
allegation that any of the members who sat on the panel
held a bias against Appellant or otherwise should have been
disqualified.” 63 M.J. at 37; see also Rose v. Clark, 478 U.S.
570, 579 (1986) (“[I]f the defendant had counsel and was
tried by an impartial adjudicator, there is a strong
presumption that any other [constitutional] errors that may
have occurred are subject to harmless-error analysis.”);
Newson, 29 M.J. at 21 (Where qualified members sat for a
court-martial, “[t]here is no reason to suspect that a
different mix of members would have produced results more
favorable to appellant.”).
Several federal circuits have similarly held that where a
government challenge for cause is improperly granted, and
the error is nonconstitutional, the appellant is entitled to
relief only if he or she can demonstrate prejudice. See United
States v. Mills, 987 F.2d 1311, 1314 (8th Cir. 1993) (holding
that reversal of cases where jurors are improperly removed
for cause is necessary only when the appellant shows actual
prejudice); United States v. Griley, 814 F.2d 967, 974 (4th
Cir. 1987) (finding harmless error where the appellant could
not demonstrate that the exclusion of a prospective juror
adversely affected him).
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Dockery has neither alleged that any of the panel
members who ultimately tried him were biased nor has he
suggested that their presence on the panel created
substantial doubt as to the court-martial’s “legality, fairness
and impartiality.” See R.C.M. 912(f)(1)(N). We therefore
uphold the lower court’s determination that the military
judge’s error was subject to a harmless error analysis. As
Dockery has failed to establish any material prejudice, he is
not entitled to relief.
Conclusion
While the United States Air Force Court of Criminal
Appeals’ determination that the military judge did not err in
his implied bias ruling was erroneous, we agree with the
lower court that Dockery suffered no prejudice. Therefore
the judgment of United States Air Force Court of Criminal
Appeals is affirmed.
14
United States v. Dockery, No. 16-0296/AF
Judge SPARKS, with whom Judge OHLSON joins, con-
curring.
I concur with the Court’s conclusion that the military
judge erred in this case but that the accused was not preju-
diced as a result of that error. I write separately to express
certain concerns that have little to do with the Chief Judge’s
well-reasoned opinion, and more to do with the issue of cer-
tain appearances that arise in the implied bias context.
Here, the military judge’s precise basis for his implied
bias determination is unclear because of his failure to put
more on the record. However, given the context in which the
issue arose and the trial counsel’s argument in support of
the challenge for cause, it seems the military judge was con-
cerned that it might appear to some that the issue of racial
bias in favor of the accused and against the Government had
found its way into the proceedings. The military judge was
rightfully sensitive to this issue. However, if this was the
military judge’s reasoning, it may have been an overreac-
tion. There is a distinction to be drawn between the issue of
race and the issue of racial bias. Here, the issue of race was
present from at least the point during voir dire when the
members, after observing that the accused was black, de-
duced that the victim was white. However, MSgt LW’s re-
sponses to the questions posed to her from counsel and the
military judge do not even remotely suggest that she har-
bored a racial preference for or bias towards the accused,
notwithstanding trial counsel’s ardent claims to the contra-
ry.
Although the Government is entitled to a fair opportuni-
ty to present its case to unbiased members, the issue of the
appearance of fairness in a criminal proceeding is generally
understood as a reference to the appearance of fairness to
the accused. After all, it is the accused’s constitutional right
to a fair trial that is most often at issue. Press-Enterprise Co.
v. Superior Court, 464 U.S. 501, 508 (1984). Here, the mili-
tary judge’s concern for the appearance of fairness to the
prosecution risked raising a more significant appearance is-
sue relevant to the accused. I agree this case is not con-
trolled by Batson v. Kentucky, 476 U.S. 79 (1986). That said,
when any member of a suspect class (such as a racial or eth-
nic group) is improperly removed from the court-martial
panel, the constitutional concerns underpinning Batson are
implicated. The question then is whether the military
judge’s ruling in this case raised the specter that the accused
United States v. Dockery, No. 16-0296/AF
Judge SPARKS, concurring
was tried before a court-martial in which a member of his
race was purposefully excluded based on the false assump-
tion that the member would be unable to impartially consid-
er the case against an accused of the same race. Id. at 85.
Because of the trial counsel’s over-the-top argument in sup-
port of his challenge for cause and our conclusion that the
military judge erroneously removed the member, it might
well seem to some that the appearance of purposeful exclu-
sion is clearly present in this case. I remain of the view that
from a purely objective standpoint, no reasonable person
armed with the facts and circumstances of this case and an
understanding of the military justice system would conclude
that the military judge purposefully excluded the member
based on her race. The record does not disclose a racial ani-
mus on the part of the military judge, and I am loath to as-
cribe to him any nefarious motive.
My intent here is to offer a word of caution to military
judges. Here, the military judge could simply have denied
the challenge for cause without more. If the trial counsel
truly felt as strongly as his comments on the record suggest,
he could have exercised his peremptory challenge. This
would have provided the military judge the opportunity to
develop the record with the appropriate inquiry required
under Batson and erased the ambiguity we are left with in
this case.
Finally, it remains unclear under our case law when, if
ever, an appearance of purposeful exclusion of a member by
the military judge might warrant relief, as long as the ac-
cused has been tried by an impartial panel. I conclude that
an appearance of purposeful exclusion does not exist in this
case. However, it does raise important questions about what,
if any, remedy would be available in a more flagrant situa-
tion in which relief might well be warranted.
2