United States v. Rogers
2016 CAAF LEXIS 370
| C.A.A.F. | 2016Background
- Rogers, a Coast Guard Electrician’s Mate 3rd Class, was convicted at a general court-martial of, inter alia, two specifications of sexual assault (Article 120, UCMJ) and sentenced to BCD, 10 years’ confinement, forfeitures, and reduction to E-1; the CCA affirmed after setting aside unrelated charges.
- The alleged victim (M.C.) testified she was heavily intoxicated and could not remember meeting or having sex with Rogers; the defense argued the acts were consensual. The legal question whether a person who is "blacked out" can consent was central.
- During individual voir dire, panel president CDR K stated her belief that if a person was so drunk they could not remember sex, then they could not have given consent; she said this reflected Coast Guard training and that "you’d have to work hard to make me believe" otherwise.
- CDR K also stated she would follow the military judge’s instructions if the law differed from her belief, but the military judge never corrected or instructed the panel on that legal point during voir dire or trial.
- During deliberations CDR K asked for a legal definition of "competent;" the military judge replied there was no further legal definition and told members to rely on the common meaning — a response the court found effectively endorsed CDR K’s misunderstanding.
- The military judge denied the defense challenge for actual and implied bias; the Court of Criminal Appeals affirmed that ruling. This court granted review and reversed, finding the uncorrected misunderstanding created implied bias and ordering a rehearing.
Issues
| Issue | Rogers' Argument | Government's Argument | Held |
|---|---|---|---|
| Whether CDR K should have been excused for implied bias | CDR K’s firm, uncorrected belief that a person who is "blacked out" cannot consent (and that it must be "proven" otherwise) would make an objective member of the public doubt panel fairness | CDR K acknowledged willingness to follow the judge’s instructions and recognized her view came from training; she could follow law as instructed | Reversed: CDR K’s uncorrected misunderstanding of the law created implied bias; denial of challenge was error and rehearing authorized |
| Whether CDR K displayed actual bias requiring excusal | Rogers argued her statements implied an improper burden shift and fixed view on consent that would not yield | Government relied on CDR K’s assurances she would follow judge’s instructions | Court did not rest on actual bias; majority found implied bias dispositive (concurrence argued actual bias also supported exclusion) |
| Whether the military judge erred in not instructing/correcting the panel on intoxication/consent law | Rogers argued the judge’s failure to correct or give a curative instruction endorsed CDR K’s erroneous view | Government argued willingness to follow instructions obviated need for curative action | Held that the judge’s failure to correct or instruct (and her deliberation response) compounded the problem, supporting implied-bias relief |
| Standard and scope of appellate review for implied-bias challenges | Rogers urged the court to review de novo because the military judge’s record lacked implied-bias analysis | Government urged deference to judge’s findings about impartiality | Court applied a less-deferential standard (between de novo and abuse of discretion) because the military judge’s analysis reflected actual-bias reasoning and lacked an objective implied-bias analysis |
Key Cases Cited
- United States v. Peters, 74 M.J. 31 (C.A.A.F.2015) (defines implied-bias public-perception focus)
- United States v. Bagstad, 68 M.J. 460 (C.A.A.F.2010) (articulates intermediate standard of review for implied-bias challenges)
- United States v. Downing, 56 M.J. 419 (C.A.A.F.2002) (requires clear record signal that judge applied correct law)
- United States v. Wiesen, 56 M.J. 172 (C.A.A.F.2001) (implied bias is judged objectively through public’s eyes)
- United States v. Dale, 42 M.J. 384 (C.A.A.F.1995) (R.C.M. 912 focus on appearance of fairness)
- United States v. Nash, 71 M.J. 83 (C.A.A.F.2012) (actual-bias inquiry hinges on sincerity of member’s claim they can be impartial)