*1 STATES, Appellee, UNITED WIESEN, Sergeant,
Robert J. Army, Appellant.
U.S.
No. 01-0134.
Crim.App. No. 9801770. Appeals
U.S. Court of
the Armed Forces. July
Decided 2002.
49
clearly
making
As
noted
Odegard,
challenge.
H.
the
Appellant:
Adele
For
Colonel
Jr.,
Chandler,
“in accord
opinion,
E.
we took our action
Colonel Allen
our
Lieutenant
Jamison,
Major Imogene
Captain
precedent
on RCM 912.”
M.
this
Court’s
(on brief).
Park
precedent,
Sean S.
that
the
MJ at 175. Under
56
a chal-
establishing grounds for
burden
Salata,
T.
Appellee:
For
Colonel Steven
making
upon
party
the
lenge for cause rests
Turney, Major
Paul H.
Lieutenant Colonel
912(f)(3);
States
challenge. RCM
United
the
Baines,
J.
Margaret
Captain
B.
Karen
(2001);
New,
95,
v.
55 MJ
99
United States
v.
(on brief).
Borgerding
Rolle,
187,
(2000);
States
53 MJ
191
United
Warden,
78,
(1999);
51 MJ
v.
ON PETITION FOR
(1998).
Giles,
States
MJ
RECONSIDERATION
PER
case,
challenged
CURIAM:
In
the defense
this
for cause based on
panel member
petitions
Government
for reconsidera-
referencing
the
and met its burden
bias
opinion at 56
tion
this Court’s
MJ
position
supervisory
over six
member’s
(2001).
petition,
In its
ar-
the Government
members, a
panel
fact established
other nine
(1)
gues
improperly
we
shifted the bur-
that
per
What the Government
voir dire.
establishing
challenge
cause
den of
for
burden-shifting
suggestion
is our
ceives as
challenge,
away
party making
from
opera
912(f)(3),
security exigencies or
contrary to
Manual
for
that national
RCM
Courts-Martial,
(2000 ed.),
used in
United States
tional necessities could
been
(2)
relationship
overlooked facts about the
“that
rebuttal
to demonstrate
it was neces
challenged
sub-
between
his
Brigade
on
sary for the
Commander
serve
misapprehended
operation-
ordinates and
panel.”
suggestion,
this
never shifted the burden of improperly party plication that we established challenge away for cause from the (CMA 1985); requiring disqualification se rule of a United States v. Harris, (CMA 1982). senior member who writes endorses an There- fore, efficiency report junior for a Judge’s member. incorrect in Chief dissent is original our opinion, repeatedly we suggesting stated that an in- issue just First, opposite. emphasized volving we relationships among the command *3 well a “[i]t settled that panel senior-subor- of the members the should viewed dinate/rating relationship per does se re- through prism the of the Sixth Amendment’s quire disqualification panel of a member.” randomly requirement jury for a selected of Later, “appel- 56 atMJ 175. we stated that peers. appropriately The one’s issue is requires ap- late review of this ease neither in public perceptions viewed context the of of plication per rejection of principles se nor of system in which the commander who exer- previous] guidance [this Court’s prosecutorial cises discretion is the official rarely.” Finally, bias should be invoked Id. panel who selects and structures the that will we remarked that our decision was “a con- hear the case. judgment,”
textual and we underscored the Accordingly, deny we petition the for re- fact that “[t]o address this issue from the consideration. standpoint performance reports of misses the point.” reject Id. at 175-76. We continue to rule. se CRAWFORD, Judge (dissenting): Chief This marks case the first occasion that I Judge’s pri Chief dissent relies petition from a of dissented denial marily on involving cases the Sixth Amend step, It is an unusual reconsideration. but a ment, taking without into account the limited majority compels measure which me to applicability of in mili that amendment case, deciding take. has: justice tary system. The Sixth Amendment (1) rejected (2) Supreme precedent; right jury to trial not apply does to public’s ability discounted the American New, 103; courts-martial. 55 atMJ United sworn responses understand the voir dire of Kirkland, 22, (2000); v. States 53 24 MJ officers and non-commissioned officers—indi- 213, Loving, United States v. 41 285 MJ pursuant viduals stringent selected to the (1994); Smith, 242, United v. 27 States MJ 25, requirements of Article Uniform Code of (CMA 1988); 248 United States v. 22 Kemp, (3) Military (UCMJ), 825; § 10 Justice USC 152, 154, 152, USCMA 46 CMR 154 general establishing shifted the of may gov Who serve on a court-martial disqualification member’s from the defense 25, erned instead Article of Uniform Code requires now the Government to demon- Justice, 825, Military per § 10 USC judges strate to the satisfaction of three of convening authority—the mits the official why convening authority this Court chose prosecutorial
who in has exercised discretion one, one member instead of different in case—personally to select the members head; process turns Article 25 on its panel. of the 22 Kemp, court-martial See (4) ignored separation pow- the doctrine of 154, USCMA at CMR 46 at 154. by judicially substituting judgment ers its Court, cases, long in Legislative This line of and Executive consistently statutory has defined by undercutting terms Branches role through eyes of a convening bias viewed of the of the select members public. Downing, United v. panels, States 56 MJ well serve court-martial as 419, (2002); New, 99-100; 422 promul- 55 MJ at the executive role of the President to 51, Armstrong, gate challenges United States v. MJ governing 54 53-54 rules to the selec- (2000); Warden, 81; majority’s 51 MJ at States tion members. Because the Rome, (1998); judicial prece- out-of-step MJ decision is so (1997); Napoleon, practice, seriously impact dent and will Daulton, ability deployed brigades, separate United States v. MJ battal- Glenn, (1996); ions, try United States v. of similar size to units courts- (CMA 1987); Smart, martial, regarding and leaves the adrift field understand, panel deciding Does member military judges in each proper role absolutely therefore, members, that the Defense has challenges questions of any evidence or to obligation present no again dissent. must offenses; disprove of the the elements re- sworn and After members were that, panel member understand does each instructions, preliminary ceived so, your raise hand. following questions and asked panel positive response from each A responses: following ceived member. member, a member of any panel Has chain, rating any panel Is anyone you person- your family, or close to chain, supervisory chain of command ally, been the victim of offense ever so, your If raise any member? any charges on way similar hand. your *4 so, If hand. Flyer. please raise Williams, your who’s under com- Colonel responses. positive No rating mand or chain? presumed to accused in this case is Colonel WILLIAMS]: MEMLCOL guilt until his is established innocent me, commander for Mereness is battalion beyond a competent lawful and evidence Rogers a battalion commander Colonel is panel mem- reasonable doubt. Can each me, Major XO Gonsalves is a battalion and apply ber this rule law vote my Hough forward Colonel is for me. you con- finding guilty of not unless are first support battalion commander beyond doubt that the vinced a reasonable my also in sergeant down at the end is you guilty? If can follow that accused is chain. law, your please hand. rule of raise else? Sergeant MJ: First Waters. Who positive response panel I note a from all Command MEM[COL WILLIAMS]: members. my Major Arroyo Sergeant also is BCT. hand, panel mem- On the other can each Mereness, who is under MJ: Colonel finding you guilty for a ber vote your supervision? under law the accused’s convinced that Sir, just I MERENESS]: MEMfLTC guilt proved com- has been lawful and I underneath want to indicate that was beyond petent a reasonable evidence Colonel Williams. Again, your you raise hand if doubt? Hough? MJ: Colonel agree proposition. that with Major Sergeant HOUGH]: MEM[LTC positive response pan- I see a from each major. Arroyo my sergeant is el member. Rogers? MJ: Colonel panel each understand Does I am ROGERS]: subor- MEM[LTC proof that the burden of to establish Major Gon- dinate to Colonel Williams guilt solely upon prose- accused’s rests my XO. salves is cution, is, that the Trial Counsel over Major Sergeant Peeples, MJ: Command there, Sharkey Captain Captain With- supervision? anyone your under Government, representing erspoon, PEEPLES]: No one. MEM[CSM that to the and that burden never shifts Arroyo? Sergeant MJ: Command the accused’s inno- Defense establish cence? ARROYO]: No one. MEM[CSM Patten, Major any any relation to MJ: repeat again. me Does each
Let panel members? panel member understand that prove guilt solely upon prose- rests No, PATTEN]: sir. MEM[MAJ the Defense to cution and never shifts to Sergeant Major Arroyo, MJ: Command panel establish the innocence? Does each you feel inhibited or restrained that? member understand your performing as a way duties including expres- fi"ee response A each court member positive from your views deliberation sion member. Hough Sir, GONSALVES]: virtue of fact Colonel ex- MEMEMAJ positions press my opinions. hold Colonel Williams of authori- own ty you? over express your opinions? MJ: You do No.
MEM[CSM ARROYO]: Yes, sir. GONSALVES]: MEMEMAJ you you MJ: Do believe that can state you that, agree MJ: Do Colonel your freely forcefully during views Rogers? your points known, deliberations to make ROGERS]: Without MEMELTC
your feelings known about issues without doubt, sir. any inhibition? your brigade MJ: Colonel Williams is MEM[CSM ARROYO]: That’s correct. commander? Waters, Sergeant MJ: First who’s in GONSALVES]: That’s cor- MEMEMAJ your supervisory chain? rect, sir. MEM[1SG WATERS]: Colonel Williams you disagree If MJ: with Colonel my reviewer. something, you him Williams on can let you disagree? know So, MJ: Your reviewer. he reviews your report card when it comes out? Oh, yes, GONSALVES]: MEMEMAJ sir.
MEMpLSG Yes, WATERS]: sir. you MJ: Have ever done that before? you MJ: Would feel inhibited *5 Yes, any way your in performing GONSALVES]: strained in sir. MEMEMAJ including duties a court member free Hough, you’re MJ: Colonel a battalion your by exercise of views virtue fact commander? your that Colonel Williams is reviewer? Yes, HOUGH]: sir. MEMELTC No, sir. WATERS]: MEME1SG you MJ: Would feel inhibited re- or you your- express MJ: You feel that can any way your performing strained in freely openly? self by duties virtue of fact that Colonel your brigade Williams is commander? Yes, MEM[1SG WATERS]: sir. No, sir. HOUGH]: MEMELTC Major Gonsalves, your MJ: who is in you freely express yourself MJ: Can chain? him? MEM[MAJ GONSALVES]: Colonel Yes, sir. Have
Rogers my HOUGH]: battalion commander. Colo- MEMELTC so. done commander, my brigade nel Williams is sir. past? you MJ: so in the Done Would do you
MJ: Would
feel
inhibited
again?
way
performing your
strained in
in
including
Yes,
duties as
court member
free
HOUGH]:
sir.
MEMELTC
your
exercise of
views
virtue of the fact
Mereness,
question.
MJ: Colonel
same
Rogers
your
that Colonel
battalion com-
problem,
MERENESS]: No
MEMELTC
mander?
sir.
No,
GONSALVES]:
sir.
MEMEMAJ
problem?
NoMJ:
you’re
MJ: And
the XO?
No, sir.
MERENESS]:
MEMELTC
Yes, sir,
GONSALVES]:
I
MEMEMAJ
express yourself freely
MJ: You could
am.
openly?
pretty
together.
MJ: Work
close
Yes,
MERENESS]:
sir.
MEMELTC
Yes,
GONSALVES]:
sir.
you
your
MEMEMAJ
MJ: And
believe that
views
respected and
received?
Everyday.
MJ:
sir,
Yes,
MERENESS]:
Yes,
GONSALVES]:
sir.
MEMELTC
MEM[MAJ
without a doubt.
you get an opportunity
MJ: Do
to ex-
your
in
MJ: Without a doubt. No doubt
your
regard
press
opinion
things,
own
in
mind?
just
you—does
you
do
give
he
direction
No,
you
go
just go?
sir.
MERENESS]:
MEMELTC
peremptor-
Williams,
counsel
you
trial defense
be em-
Colonel
MJ:
any way
ily challenged
Williams.
COL
barrassed or restrained
your
a court
performance
duties as
separate principle
Implied bias exists as
you
fact that
hold
virtue
requires
potential
fact
when fairness
position of
over—a number of
superi-
As defined
our
finder be excused.
disagree
panel—who may
members
Wood,
299 U.S.
in United States
you?
with
(1936),
123, 134,
81 L.Ed.
S.Ct.
I have no
WILLIAMS]:
MEM[COL
in law to
“a bias attributable
bias is
problem, Your Honor.
juror
regardless of actual
prospective
Now,
per se an
you
opinion
Implied
is not
partiality.”
had one
MJ:
you
your
appear
five
public
had
or six
subordinates
perception
“of
issue
accept
you,
you
with
that?
disagree
sys
can
justice
in the
ance of fairness
Wiesen, tem.” United
in the
WILLIAMS]:
MEM[COL
in the Sixth
It is an
rooted
issue
past.
requirement
that “the accused
Amendment
question
Rogers,
with
Colonel
same
MJ:
public
enjoy
right
speedy and
shall
to a
regard Major
Gonsalves.
trial, by
impartial jury[.]”
prob-
I have no
MEM[LTC ROGERS]:
216, 102
Phillips,
In
455 U.S.
Smith
lem, sir.
(1982), the
This is not an instance when a ample disqualifier, opportunity lant had to show the actu- post-trial potential hears of Here, Williams, supra. potential dis- al bias of COL other mem- Phillips, trial, ber, Yet, potential at he not ask qualifier was raised at trial. chose COL
55 supported the generally Ms com- This Court has single one about Williams relationships, professional after relationsMp proposition with other members mand military hand, received assurances from at do not we find in the case such as supervi- and all in Williams’s command COL implied for bias. justify of a member removal improper sory be no that there would chains Ai, See, MJ 1 v. 49 e.g., United States majority refuses to influence exerted. The (1998)(unanimous that routine offi- court held of recognize a reasonable member how relationships professional between cial or all the cir- general public would examine of witness court-martial members and cumstances, including the members’ state- disqualifying); not se particular case are oath, background ments under historical Bannwarth, MJ 265 36 UCMJ, specific for reasons chal- (CMA 1993)(senior-subordinate relationsMp lenges that exist in and Manual the UCMJ automatically court members is not between m Rules of Criminal but not the Federal member); disqualifying of senior Procedure, reservation (CMA Porter, States v. exceptional bias for rare or circumstances. was 1984)(friendship with the trial counsel clearly The record of trial this case estab- disqualifying); not accord United per se fully capable that the were lishes members Warden, (1999); States v. MJ deciding appellant’s guilt based innocence (CMA 1988). Murphy, 26 MJ upon presented to the evidence them. vein, disqual- refused to the same we have 25(d)(2) convening au- Article instructs ify member’s a court because that thority to detail members who are “best of crimes similar to friends have been victims duty qualified age, reason edu- charged. an accused is one service, cation, length training, experience, Henley, MJ 488 See United States judicial temperament.” Article 25 does Velez, (2000); MJ 220 United States v. convening authority he tell that must (1998). military necessity, deployment, or consider exigencies operational selecting opinion when majority’s puts also trial The Rome, court-martial members. But see judges judges unique Military in a “box.” 467; Youngblood, MJ United States v. always now must role we have assume The is on defense competent out left counsel and ferret particular counsel to show the members se- relationships court members mote between authority the convening lected should not judges military aspects of the case. Are upon sit It not incumbent because bias. presumably competent required now to ask to show that neces- Government they challenging if counsel on the record sity required convening to se- not, certain member lect certain members to the exclusion oth- why military judge Is onus not? ers. of a chal- to extract statement of waiver majority’s logical view Finally, extension of lenge bias? and most very deployed will make difficult for a disturbing, long will it be before we see how *8 authority brigade, convening of a detached judge challenge military battalion, separate or units of similar size to because, alia, per- inter only This convene a court-martial. de- “tough sentencing,” and such to be ceived flexibility for has feats the UCMJ well perception would not sit with provided inception, since its but also under- public? American good discipline in armed mines order and Accordingly, not whether other the issue is brigade, If commander of a services. convening could whom the officers battalion, separate or units of similar size of appellant’s chosen to sit on court-mar- have currently deployed in Asia wanted to soldiers I am tial available Fort Stewart. were court-martial, may prac- he or she convene majority, But I they sure were. unlike ticably precluded domg so without from to the Government do not shift the burden changing going the unit or venue. outside is whether COL may show this. The sole issue impact on the mission. Either disqualified Williams was because his defense counsel to show bias of individual toward the offenses or accused. The members, every judicial body like show facts he was not. country; provide military practi- this tioners the rudder needed to steer denial reconsideration leaves the ship. ship of “implied rudderless bias” adrift on high seas, searching port of call
before sinks the bottom of the Marianas SULLIVAN, Judge (dissenting): Senior Trench. Court left judge This has advocates trying courts-martial, and others well as again. I dissent See United States convening who always authorities (2001) Wiesen, 172, 181 (Sullivan, S.J., advice, guessing looked Article 25 for now dissenting). view, my majority has challenges. about member selection and effectively established a se rule that a Surely, members, past court-martial both brigade significant commander of a number present, majority’s read who decision disquali the other members of a why will wonder believes that sitting fied panel. from on that public the American would their integrity uphold grant and their oath petition the Consti- the Government’s process tution and due law. for reconsideration and have full oral also argument on the issue of whether this reconsideration; grant apply I would Su- placing Court’s decision made new law preme precedent; term define the “im- burden on the justify Government to such plied bias” within its historical Sixth Amend- sitting jury. Any commander applying principle ment context while appellate proceedings, further case promulgated by statutes and rules the Con- gress analysis and Executive Branch would benefit from such governing additional forces; the armed restore the burden to from our Court.