7 M.J. 591 | U.S. Navy-Marine Corps Court of Military Review | 1979
Appellant pled guilty to all charges and specifications and was found guilty by the military judge. Thereafter, he was sentenced by a court composed of members. Before the court was assembled, appellant moved for suspension of Rule 3(b) of the Southwest Judicial Circuit’s Supplemental Rules of Practice and Procedure. This rule required that voir dire examination of the court members be conducted by the military judge. The motion was denied and all voir dire examination was conducted by the judge, over objection by the defense counsel, who desired to personally propound his questions directly to the prospective court members. Trial defense counsel did submit certain written questions to the judge which were covered by him in a general way during the voir dire proceedings but were not asked as phrased by defense counsel. This procedure was also objected to by defense counsel at trial.
When a member is examined with a view to challenge, it is to be remembered that he may be asked any pertinent question tending to establish a disqualification for duty on the court. Statutory disqualifications, implied bias, actual bias, or other matters which have some substantial and direct bearing on an accused’s right to an impartial court, are all proper subjects of inquiry. The accused should be allowed considerable latitude in examining members so as to be in a position intelligently and wisely to exercise a challenge for cause or a peremptory challenge.1
We find that the practice required by the Southwest Judicial Circuit’s Rule 3(b) is contrary to paragraph 62(b), Manual for Courts-Martial, United States, 1969 (Revised edition); Rule 24(a), Federal Rules of Criminal Procedure; United States v. Parker, supra, and United States v. Slubowski, supra. Its application in the instant case was error.
In United States v. Slubowski, supra, this Court found it error for the judge to deny defense counsel the right to directly examine prospective court members, but held that under the circumstances of that case there was no prejudice to the accused. My colleagues reach the same conclusion in this case, for which reason they choose to affirm the findings and sentence as approved below. I would set aside the sentence and order a rehearing thereon because I believe the accused was prejudiced by the judge’s refusal to allow trial defense counsel’s personal inquiry of prospective court members as requested. In my view, prejudice is apparent, just as it would be if the judge had refused counsel the right to cross-examine witnesses directly and had required, instead, submission of questions in writing to be asked by the judge. The prejudicial impact of such a procedure as it applies to voir dire examination has been highlighted in the following extract from appellant’s brief:
The purpose of voir dire is to discover any bias, prejudice, or interest on the part of any member of the panel that would substantially impair the member’s ability to act impartially on findings or*593 sentence in the case. Even if defense counsel is unable to articulate the ground for challenge sufficiently to sustain that challenge for cause, he may still exercise one peremptory challenge which might be based upon nothing more than a visceral response to the demeanor of the member so challenged. Rule 3(b) [Southwest Judicial Circuit Rules of Court] impaired the ability of defense counsel to develop the basis for challenge, both peremptory and for cause. The tone, emphasis, and facial expression of a judge who asks a question prepared by defense counsel cannot be expected to be the same as defense counsel’s were he to ask the same question himself. Although the words used be the same, the question as a whole is not. Moreover, the response given by a member to the military judge who enjoys the aura of his office, cannot be expected to be the same as the response given to defense counsel. Finally, the effectiveness of follow-up questions in response to answers given by the members is diminished if those questions are delayed by the transcription and recitation process required by Rule 3(b). All of these factors impair defense counsel’s ability to develop the basis for a challenge for cause. Unavoidably, the distraction inherent in drafting follow-up questions prevents that careful observation of demeanor which is the basis for a peremptory challenge.
In light of the improper restriction imposed upon appellant’s right to examine prospective court members and the resultant impairment of his ability to develop a basis for a challenge, I would order a rehearing on the sentence. However, since my brothers find no prejudice, the findings and sentence as approved below are affirmed.
. 6 U.S.C.M.A. at 279, 19 C.M.R. at 405.