United States v. Dockery, 2017 CAAF LEXIS 108

MSgt Joseph R. Dockery III was convicted by a mixed officer/enlisted general court-martial of sexual assault (Art. 120) and adultery (Art. 134); sentence approved and AFCCA affirmed.
During voir dire, defense-listed witness SMSgt DC (African American) acknowledged intimate knowledge of the case and was excused for actual bias by agreement of parties.
MSgt LW (Hispanic) volunteered prior sexual-assault-related experience in voir dire and, when asked whether someone "like you" would be desirable on the panel, said she would want someone like her on the panel and noted that "for some reason an African American person already got dismissed."
Trial counsel argued MSgt LW was biased in favor of the accused because her comment suggested racial-based sympathy; defense explained the remark reflected confusion about jury size and a desire for fairness.
The military judge denied actual-bias challenge but sua sponte excused MSgt LW for implied bias without detailed on-the-record analysis; AFCCA upheld that ruling but found any error harmless beyond a reasonable doubt.
CAAF granted review, held the military judge erred in finding implied bias (insufficient analysis and context favored no implied bias), but applied a harmless-error prejudice analysis and affirmed relief denial because Dockery showed no material prejudice.

Issue	Dockery's Argument	Government's Argument	Held
Whether the military judge erred by excusing MSgt LW for implied bias	LW’s statements, explained by voir dire context and repeated assurances of fairness, did not show racial bias; judge misinterpreted her comment	LW’s unsolicited reference to the excused African American member reasonably showed bias in favor of the accused and risked public perception of unfairness	Military judge erred: record lacks analysis applying implied-bias test and context shows race was raised by defense counsel; excusal was not warranted
Whether AFCCA erred in upholding excusal and by applying harmless-error review	Erroneous excusal should be reversed without requiring prejudice proof because implied-bias doctrine protects appearance of fairness	Erroneous excusal is subject to harmless-error/prejudice analysis; reversal only if appellant shows material prejudice	AFCCA erred to the extent it affirmed implied-bias ruling, but harmless-error/prejudice analysis applies to an erroneous excusal and Dockery showed no material prejudice; conviction stands

United States v. Peters, 74 M.J. 31 (C.A.A.F. 2015) (standard of review and analysis for implied-bias challenges)
United States v. Clay, 64 M.J. 274 (C.A.A.F. 2007) (deference to military judge who puts implied-bias analysis on the record)
United States v. Quintanilla, 63 M.J. 29 (C.A.A.F. 2006) (erroneous grant of government challenge requires prejudice showing when no allegation members were unqualified)
United States v. Elfayoumi, 66 M.J. 354 (C.A.A.F. 2008) (implied bias assessed objectively through public’s perception)
United States v. Townsend, 65 M.J. 460 (C.A.A.F. 2008) (public perception core of implied-bias test)
United States v. Dale, 42 M.J. 384 (C.A.A.F. 1995) (implied-bias jurisprudence background)
Newson v. United States, 29 M.J. 17 (C.M.A. 1989) (no reason to suspect different panel mix would yield better result)
Rose v. Clark, 478 U.S. 570 (1986) (presumption that trial by impartial adjudicator renders other errors harmless)
Batson v. Kentucky, 476 U.S. 79 (1986) (prohibits race-based peremptory strikes; discussed but not extended to for-cause challenges)
United States v. Mills, 987 F.2d 1311 (8th Cir.) (federal circuit authority that improper juror removal requires showing of prejudice)
United States v. Griley, 814 F.2d 967 (4th Cir.) (harmless-error approach when prospective juror improperly excluded)