United States v. PetersUnited States v. Peters
Lead Opinion
A general court-martial composed of officer and enlisted members convicted Appellant, based on mixed pleas, of drunken operation of a vehicle, causing injury because of that drunken operation, two specifications of involuntary manslaughter, and aggravated assault in violation of Article 111, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 911 (2012); Article 119, UCMJ, 10 U.S.C. § 919 (2012); Article 128, UCMJ, 10 U.S.C. § 928 (2012).
This Court granted review of the following issue:
WHETHER THE MILITARY JUDGE ERRED IN DENYING THE IMPLIED BIAS CHALLENGE AGAINST [LIEUTENANT COLONEL COOK], IN LIGHT OF [HIS] PROFESSIONAL RELATIONSHIP WITH TRIAL COUNSEL, THE SPECIAL COURT-MARTIAL CONVENING AUTHORITY, AND THE INVESTIGATING OFFICER.
For the reasons set forth below, we conclude that the military judge abused his discretion when he denied the challenge for cause against Lieutenant Colonel (LTC) Cook. There is no per se rule of disqualification when a member knows or has worked with trial counsel or defense counsel. Rather, such relationships are evaluated through the lens of Rule for Courts-Martial (R.C.M.) 912(f)(l)(N) and the doctrines of actual and implied bias. This case is a close case and a rare case where the record reflects a qualitative bond rising to the level of implied bias. Therefore the military judge abused his discretion by not applying the liberal grant mandate. Thus, we reverse.
Background
Appellant elected to be tried by a panel of both officer and enlisted members. One of the officers placed on the panel was LTC Cook, a battalion commander with the 2nd Brigade Combat Team, 4th Infantry Division. Prior to trial, counsel had an opportunity to voir dire LTC Cook, who disclosed that he had a professional relationship with Captain (CPT) Krupa, the trial counsel in this case.
During voir dire, LTC Cook informed counsel and the military judge that he sought CPT Krupa’s legal advice on a regular basis, including the night before voir dire, oh an unrelated military justice issue. LTC Cook was aware that CPT Krupa was involved with this case when they spoke on the phone and stated that their phone conversation likely ended with the words, “see you tomorrow.”
LTC Cook also called CPT Krupa after being summoned to serve on the court-martial panel:
[LTC Cook:] [A]s soon as I was notified last week that you know — I was talking to Captain Krupa again about another legal matter and it was — I said, “Hey, I’ve been summoned to be a court-martial panel member for a case that involves the brigade,” and Captain Krupa said, “Sir, I’m aware of that, and it’s a — sir, it’s not uncommon practice.” I said, “Okay.” Because I was filling out my questionnaire on whether or not I — to be a court-martial panel member, or assessing, you know, how to deal with my schedule and be able to serve on this court-martial, and so as we discussed an investigation that was under legal review, I did say, “Hey, I’ve' been summoned to be on this court-martial.”
During voir dire, LTC Cook also volunteered that he knew Colonel (COL) Kolashe-ski, the brigade commander who forwarded Appellant’s charges for court-martial. When asked about that relationship, he said that COL Kolasheski was his “rater and boss,” but that the relationship would “not affect my ability to be fair and impartial in this case.” Additionally, when asked whether “any member [is] aware of any matter that might raise substantial question concerning your participation in this trial,” LTC Cook raised his hand because Major (MAJ) Krat-tiger, the investigating officer assigned to Appellant’s case, was LTC Cook’s executive officer (XO).
Appellant objected to LTC Cook’s panel membership because of these three relationships. In opposing the challenge, trial eoun-sel (CPT Krupa) — whose own relationship with LTC Cook was in question — provided what amounted to a personal endorsement of LTC Cook’s character as argument that he should remain on the panel:
[TC:] Colonel Cook is one of the most conscientious and thoughtful commanders within the brigade- He takes this incredibly seriously as evidenced by his answers.
The military judge denied Appellant’s implied bias challenge and also relied on LTC Cook’s character as the basis for that decision:
[MJ:] I can’t say enough about how I believe that his [LTC Cook’s] demeanor, his thoughtful answers to the questions that were asked indicate to me that he is truthful and that he can be an impartial panel member in this case.
In discussing, his findings, the military judge also summarily stated that he had considered the legal test for implied bias, including the requirement that the liberal grant mandate be considered:
[MJ:] Concerning implied bias, implied bias exists if an objective observer would have a substantial doubt about the fairness of this court-martial proceeding. And I think that an objective observer who heard Colonel Cook and saw Colonel Cook responding to the questions of counsel would not have any reason to doubt his impartiality in this case. So, I don’t believe that there’s actual or implied bias established in this case. And I am considering the liberal grant mandate that the Appellate Courts have asked me to consider in deciding whether or not to grant these challenges. I have considered actual and implied bias with respect to that. And again, I find no reason to grant a challenge for cause against Lieutenant Colonel Cook.
Standard of Review
We review 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. Moreno,
The military judge is also mandated to, err on the side of granting a challenge. This is what is meant by the liberal grant mandate. See United States v. Rome,
This Court has previously noted that although it “ ‘do[es] not expect record dissertations’ ” from the military judge’s decision on implied bias, it does require “ ‘a clear signal that the military judge applied the right law.’” Id. (quoting United States v. Downing,
Implied Bias
R.C.M. 912(f)(l)(N) sets the basis for an implied bias challenge, which stems from the “historic concerns about the real and perceived potential for command influence” in courts-martial. Clay,
Discussion
In determining whether the military judge abused his discretion, we turn first to his reasoning for denying the causal challenge. The military judge stated for the record that he had considered the mandate to generously grant challenges, but that he found “no reason to grant a challenge for
The military judge’s reasoning is problematic for two reasons. First, we test for implied bias not on the subjective qualities of the panel member, but on the effect that panel member’s presence will have on the public’s perception of whether the appellant’s tidal was fair. Rome,
Second, the well-settled law that requires military judges to consider on the record whether to grant causal challenges exists not merely to have the words of the test preserved on the record, but to show that the grounds for the challenge were given serious and careful consideration in the first instance. Downing,
The Government rightly points out, and this Court well recognizes, that military communities and units are close-knit. Relationships among panel members and others involved in the case are unavoidable. We recognize it is not uncommon, nor inappropriate, for a panel member to be acquainted professionally with other individuals involved in the trial. As a result, there is no per se disqualification in circumstances where a member of a panel knows or has worked with trial counsel or defense counsel. United States v. Hamilton,
When considering all the factors, this is a case where LTC Cook’s relationship to CPT Krupa could undermine the perception of fairness in the proceedings. LTC Cook regularly relied upon CPT Krupa for legal advice on military justice matters. He trusted that legal advice and believed that CPT Kru-pa did good work as a lawyer. As soon as LTC Cook was summoned to be a court-martial panel member in this case, he sought CPT Krupa’s input about whether it was common that someone from within the brigade serve on a panel. Despite knowing that he would be serving as a panel member in CPT Krupa’s case, LTC Cook also called CPT Krupa the night before voir dire. They did not talk about Appellant’s case, but they did sign off the conversation by saying “see you tomorrow.” Finally, in objecting to Appellant’s causal challenge, CPT Krupa relied upon his personal knowledge of LTC Cook’s character to argue on behalf of keeping him on the panel. While the appearance would be more problematic were the member to have shown special trust and confidence in
The test for implied bias, however, is not whether the panel member is subjectively a person of good character. See Miles,
A professional relationship between a panel member and trial counsel is not per se a ground for granting an implied bias challenge. Here, however, the totality of the factors support the conclusion that Appellant had good grounds for challenging LTC Cook’s membership based on implied bias. LTC Cook and CPT Krupa’s relationship went beyond what would be perceived as fair to an appellant in the context of a typical court-martial.
Conclusion
Therefore, in this case, where the military judge did no more than invoke the implied bias doctrine and where the facts otherwise show an unusually strong bond between trial counsel and a member of the panel, we con-elude that the military judge abused his discretion in not erring on the side of caution and excusing LTC Cook on the ground of implied bias. The decision of the United States Army Court of Criminal Appeals is reversed, and the findings and sentence are set aside. The record of trial is returned to the Judge Advocate General of the Army. A rehearing may be authorized.
Notes
. Appellant was also charged with, and pled not guilty to, one specification under Article 134, UCMJ, 10 U.S.C. § 934 (2012), but the charge was dismissed after the findings of guilty and before the sentence upon a defense motion.
. At times, this Court has also cast the test as one asking “whether most people in the same position would be prejudiced." Wiesen,
. As a result, we note, but do not ultimately address the two additional grounds for the implied bias challenge: COL Kolasheski, who forwarded the charges, was LTC Cook’s "rater” and MAJ Krattiger, the investigating authority in the case, was LTC Cook's XO. Although perhaps individually neither of these relationships would provide a sufficient ground on which to grant an implied bias challenge, their existence does contribute to the totalily of the factors considered in determining that the challenge against LTC Cook should have been granted.
Dissenting Opinion
(dissenting):
The military judge did not err in declining to grant the challenge for cause against LTC Cook. In the first place, the judge did significantly more than simply invoke the liberal grant mandate on the record; he discussed LTC Cook’s responses to voir dire and analyzed his demeanor and impartiality in denying the challenge. Consequently, his analysis is entitled to deference. See United States v. Clay,
Second, the military judge’s decision was the correct one. It is settled that “ ‘implied bias should be invoked rarely.’ ” Id. at 277 (quoting United States v. Leonard,
There is no evidence in this case that the trial counsel and LTC Cook were personal friends, or that there existed any special bond between them that might undermine
The majority states that because LTC Cook trusted the advice of trial counsel, we should question LTC Cook’s judgment and impartiality. United States v. Peters,
I also do not see how trial counsel’s relationship with the panel member in this case is distinguishable from that in United States v. Castillo,
Finally, the majority appears to expand the ambit of the “public perception” test contrary to óur case law by writing that the implied bias test “may well reflect how members of the armed forces, and indeed the accused, perceive the procedural fairness of the trial as well.” Peters,
I agree that it is proper for counsel and military judges to explore professional contacts between panel members and trial or defense counsel, id. at 35, and in other circumstances such relationships might result in findings of implied bias. But this is not such a case. Under these circumstances, a public observer familiar with the military justice system would not doubt the fairness of the trial solely because of this professional relationship. I would affirm.
Dissenting Opinion
(dissenting):
I agree with Judge Stueky that the military judge recognized and applied the correct law and engaged in voir dire to explore the relationship between trial counsel and the challenged member. Under our precedent he, therefore, did not abuse his discretion. United States v. Clay,
While a bright-line rule excluding members on the basis of implied bias where the trial counsel has advised the member might, as an empirical matter, be viewed as only fair by an objective member of the public, we rejected such a rule long ago. United States v. Rome,
I respectfully dissent.