Lead Opinion
Opinion of the Court
A general court-martial composed of officer members convicted appellant, contrary to his pleas, of stealing U.S. currency of a value greater than $100.00 (7 specifications) and wrongfully appropriating an American Express card, in violation of Article 121, Uniform Code of Military Justice, 10 USC § 921. The adjudged and approved sentence provides for a bad-conduct discharge, confinement for 60 days, partial forfeitures for 2 months, and reduction to the lowest enlisted grade. The Court of Criminal Appeals affirmed the findings and sentence in an unpublished opinion.
We granted review of the following issue:1
WHETHER THE MILITARY JUDGE ERRED TO THE PREJUDICE OF APPELLANT BY DENYING THE CHALLENGES FOR CAUSE.
Two challenges for cause are at issue in this case. The first involved a defense challenge of a lieutenant colonel who had previously served as a judge advocate and area defense counsel. The second, on which we turn our decision, involved Major (Maj) B, the wife of Office of Special Investigations Special Agent B, one of the agents responsible for investigating the crimes for which appellant was tried.
During voir dire, Maj B stated that she and her husband “don’t discuss cases.” She initially said that she had not heard her husband “make any references at all to this case.” When asked, however, if she had “heard him make any references at all that could be applied to this case,” she answered, “Yes.” Asked to elaborate, she testified:
It was a conversation on the telephone but I don’t know who he was talking to because I didn’t answer the telephone when we were at home. He made a comment like, “More money?” So when he got off the phone I said, “What are you talking about, ‘more money’?” I didn’t know who he was talking to. He said, “Oh, it is a case that is being worked on. Somebody said that this guy took more money.” That would be something that I might associate with this ease.
Defense counsel challenged Maj B for cause on the ground that she “is the wife of one of the case agents or the assistant case agent.... In this case, if for no other reason, we would think that the appearance aspect of this: the agent whose name is throughout this case file.” Defense counsel argued that Maj B should not sit on the court panel in order to keep the court-martial “free from substantial doubt as to reality [sic], fairness and impartiality.” Trial counsel did not dispute Special Agent B’s role in the investigation of this case, but informed the military judge that the prosecution “does not anticipate Agent [B]’s name coming up even once in this case.” The military judge denied the challenge, remarking that Maj B’s “answers were significantly direct, sincere, and that they reflected that she keeps apart then-two particular professional careers; that she knows nothing about this particular ease; [and] that she has not formed any opinion whatsoever in this particular case.” The military judge also ruled, “I don’t see a challenge for cause for ... [Maj B] based on the
The record before us is unambiguous. Contrary to the assertion of our dissenting colleague that “there is no evidence in the record that ... [Special Agent B] was involved with appellant’s case,”
RCM 912(f)(1)(N), Manual for Courts-Martial, United States (1995 ed.), codifies a general ground for challenge applicable when a member “[s]hould not sit as a member in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality.” We have said that “[t]his general ground includes actual bias as well as ‘implied bias.’ ” United States v. Daulton,
The issue in this case involves implied bias rather than actual bias. Although our standard of review is abuse of discretion for challenges based on actual bias as well as those based on implied bias, we give less deference to the military judge when implied bias is involved. See generally United States v. White,
“A challenge for cause based on actual bias is ‘essentially one of credibility.’ ” Because of the military judge’s superior “opportunity to observe the demeanor of court members and assess their credibility during voir dire,” a military judge’s ruling on a challenge based on actual bias is given “great deference.” Daulton,
We hold that the military judge abused his discretion in denying the challenge of Maj B. Under an objective standard, there is a “substantial doubt” about the “legality, fairness, and impartiality” of a court-martial when a court member sits in judgment of a case investigated by her husband. Like the participation of the security police officer in Dale and the participation of the member whose sister and mother were victims of sexual abuse in Daulton, Maj B’s participation in a case investigated by her husband does not pass the test of public confidence contemplated by RCM 912(f)(1)(N). See RCM 912(f), Discussion (example of basis for challenge is that “the member ... is closely related to ... a witness in the case”); see also United States v. Glenn,
Contrary to our dissenting colleague’s assertions, this decision is not a reflection on Maj B’s integrity, “a rejection of rehabilitation of potential court members,”
This case is not based on Maj B’s relationship with a person who happens to be in law enforcement. It is based on her relationship to a criminal investigator who investigated the charges in the specific ease before her. We hold only that Maj B’s participation in a case investigated by her husband would cause a reasonable member of the public to have “substantial doubt as to legality, fair
The decision of the United States Air Force Court of Criminal Appeals is reversed. The findings and sentence are set aside. The record of trial is returned to the Judge Advocate General of the Air Force. A rehearing may be ordered.
Judges SULLIVAN and EFFRON concur.
Notes
. We also granted review of the issue "[w]hether the military judge erred to the prejudice of appellant by instructing the members that a mistake of fact must be both honest and reasonable to be a defense to the specific-intent crimes of larceny and wrongful appropriation.” In light of our decision on the challenges for cause, we do not decide this issue.
Dissenting Opinion
(dissenting):
Despite their assertion to the contrary, the majority’s decision is either a reflection on the integrity of the court member or a rejection of rehabilitation of potential court members. Neither is appropriate. Additionally, it misapplies our “clear-abuse-of-discretion” standard of review, United States v. White,
FACTS
This case is similar to others we have seen. See, e.g., United States v. Roane,
The court members were placed under oath for the voir dire. During the voir dire of the court members, it was learned that Lieutenant Colonel (LtCol) B was previously an area defense counsel, while Major (Maj) B was married to an OSI agent.
Maj B testified on voir dire as follows:
TC: Thank you. Major [B], I just want to ask you a couple of questions about your association with OSI. I understand your husband is an agent for them, and it was also my understanding that he was involved in some way on this particular case. Are you aware of that?
MEMB MAJ [B]: No. I had no idea. We don’t discuss eases. If he ever gave me any information at all — if he ever did — I would want to know more. So, I just don’t want to know. We don’t discuss any eases.
TC: Have you heard him make any references at all to this case?
MEMB MAJ [B]: No.
TC: Let me ask you an even more specific question. Have you heard him make any references at all that could be applied to this case?
MEMB MAJ [B]: Yes.
TC: If I could ask, what references would those be?
MEMB MAJ [B]: It was a conversation on the telephone but I don’t know who he was talking to because I didn’t answer the telephone when we were at home. He made a comment like, “More money?” So when he got off the phone I said, “What are you talking about, ‘more money’? I didn’t know who he was talking to. He said, “Oh, it is a case that is being worked on. Somebody said that this guy took more money.” That would be something that I might associate with this case.
TC: Did he say anything about that case? MEMB MAJ [B]: No.
*233 TC: So you have a standing rule in your house not to discuss cases?
MEMB MAJ [B]: Yes.
TC: Just one last general thing. Is there anything about your marriage to your husband or in your relationship to your husband that would cause you to have any problems in sitting in a court-martial? MEMB MAJ [B]: No. I mean since he has worked in OSI, it has always been his work and mine has been mine. I don’t really get involved with what he does.
The judge later questioned Maj B, as follows:
MJ: Just to clarify for the record, you had no association with this case based on your relationship with your husband?
MEMB MAJ [B]: Absolutely not.
MJ: Or his professional association with OSI?
MEMB MAJ [B]: No, sir.
MJ: And you heard none of the details of this particular case?
MEMB MAJ [B]: No, sir.
MJ: And you have not formed any opinions in regards to the charge and specifications in this case based on your husband’s professional occupation with the Air Force?
MEMB MAJ [B]: No.
Both members articulated their ability to remain impartial, listen to the evidence, and follow the judge’s instructions. There was no questioning of Maj B as to the other witnesses in the case.
During argument on the challenge for cause against Maj B, defense counsel stated:
Despite her protestations that they do not discuss things, I find that highly unusual. That would be a unique case in which one’s profession did not bleed over into their personal lives, and that there were no theoretical discussions as to the value or the procedures or processes of people they deal with in their jobs. In this case, if for no other reason, we would think that the appearance aspect of this: the agent whose name is throughout this case file.
The defense did not call her husband in rebuttal of her testimony.
The prosecutor argued the following:
The United States does not anticipate Agent [B]’s name coming up even once in this case. Certainly, we have no plans for bringing it up and we are not aware of any reason that it would come up as he was the assistant case agent and merely derived for some support for the main case agent. The Defense Counsel’s concern is based solely on the fact that she happens to be married to that individual. As she stated, there has been no bleedover and it wouldn’t affect her at all.
The judge found that Maj B’s “answers were significantly direct, sincere, and that they reflected that she keeps apart their two particular professional careers; that she knows nothing about this particular case; that she has not formed any opinion whatsoever in this particular case; and in regards to her particular answers, she has nothing to state as an effect, either for her or for her husband in regards to her particular participation in this ease or the results of this particular case.”
Subsequently, both challenges for cause against these two members were denied, and the defense used the peremptory challenge against LtCol B.
In seeking to preserve the challenge for cause, the defense stated that “but for the denial of the challenge for cause as to Major [B], we would have challenged yet another member.”
DISCUSSION
Our standard of review is whether the judge clearly abused his discretion. White,
This Court has stressed the Sixth Amendment right to “an impartial jury.” Voir dire is the method to weed out members who may be biased. The Manual sets forth specific grounds for challenges for cause plus the catchall mentioned by the majority. RCM 912(f)(1), Manual for Courts-Martial, United States (1995 ed.). Neither the Manual nor 28 USC § 1870 prohibits police officers from sitting as jurors. “Bias and prejudice will not be presumed from the fact that a juror is engaged in law enforcement work.” United States v. LePera, 443 F.2d 810, 812 (9th Cir.1971) (citation omitted).
The question of “partiality” of a court member is “plainly one of historical fact: did a juror swear that he could set aside any opinion he might hold and decide the case on the evidence, and should the juror’s protestation of impartiality have been believed.” Patton v. Yount,
Initial questioning of a court member may establish a ground for challenge for cause, see, e.g., Patton, supra at 1038,
The majority’s decision undermines the practice of rehabilitation in Federal, state, and military courts. When the juror indicates that he or she will follow the judge’s instructions, keep an open mind, and weigh all the evidence, absent disbelief by the judge, the member is “mentally free to render an impartial finding and sentence based on the law and the evidence.” United States v. Parker,
The fact that the court member’s husband was involved with investigating a crime against a person’s property does not disqualify the member, just as “a mere distaste for a crime does not disqualify a member.” United States v. Karnes,
The Supreme Court has not disqualified a juror based on implied bias. See, e.g., Smith v. Phillips,
Some examples might include a revelation that the juror is an actual employee of the prosecuting agency, that the juror is a close relative of one of the participants in the trial or the criminal transaction, or that the juror was a witness or somehow involved in the criminal transaction.
Id. at 222,
The Court of Appeals for the Seventh Circuit in Hunley v. Godinez,
The prosecutor asked Maj B if she knew that her husband was involved with this case. She said that she was unaware of any involvement. Indeed, there is no evidence in the record that he was involved with appellant’s case. The majority points only to the argument of counsel, but that is not evidence. As the Supreme Court has noted:
It [the challenge to the array] consists exclusively of counsel’s statements, un-sworn and unsupported by any proof or offer of proof. The Government did not explicitly deny those statements. But it was under no necessity to do so. The burden was upon the petitioner as moving party “to introduce, or to offer, distinct evidence in support of the motion.”
Of itself this failure in tender of proof would require denial of the motion____
Frazier v. United States,
In any event, upon being questioned, Maj B said that she would remain impartial, listen to the evidence, and follow the judge’s instructions. Additionally, she stated that she had formed no opinion in this case. Defense counsel did not ask for a session under Article 39(a), UCMJ, 10 USC § 839(a), to call the member’s husband to explore his involvement with the case. Now, the majority assumes the worst, even though there is not the slightest appearance of unfairness based on the facts presented. Cf. United States v. Dinatale, supra.
As I warned in United States v. Dale,
The majority formulates a new standard to be applied retroactively. The opinion does not set forth a single standard to be applied in cases concerning challenges for cause. Maybe this issue is not susceptible to a single standard and we should have multiple standards. If that is the case, what other standards will we adopt in the future? This issue will continue to bedevil us. However, the issue could be avoided if trial judges would liberally grant challenges for cause. But they should not be required to grant them based on arguments versus evidence in a case.
Concurrence Opinion
(concurring):
I write only because of the doomful, apocalyptic dissent of my learned colleague. This case is simple. The wife of a policeman who investigated the case was allowed to sit in judgment of the man her husband accused of committing the crime. I would allow neither the fox nor the vixen to guard the hen house.
With all due respect, we are not talking abstractly about a policeman or a policeman’s wife. We are talking about “the” policeman and “his” wife. See RCM 912(f)(1)(N), Manual for Courts-Martial, United States (1995 ed.).