Lead Opinion
Opinion of the Court
A general court-martial composed of officer and enlisted members convicted appellant, pursuant to her pleas, of one specification each of wrongful distribution of lysergic acid diethylamide (LSD), wrongful use of LSD, wrongful use of psilocybin, larceny of military property, and wrongfully giving an altered military identification card to another airman, and 2 specifications of wrongfully altering military identification cards, in violation of Articles 112a, 121, and 134, Uniform
Our Court granted review of the following issues:
I
WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT BY REFUSING TO GRANT THE CHALLENGES FOR CAUSE AGAINST TWO MEMBERS WHO HAD RECEIVED A BRIEFING FROM THE SPECIAL COURT-MARTIAL CONVENING AUTHORITY CONCERNING THE STATE OF DISCIPLINE IN THE UNIT AND THE SPECIAL COURT-MARTIAL CONVENING AUTHORITY’S VIEWS OF “APPROPRIATE” LEVELS OF PUNISHMENT.
II
WHETHER APPELLANT’S SENTENCE SHOULD BE SET ASIDE DUE TO UNLAWFUL COMMAND INFLUENCE BY THE SPECIAL COURT-MARTIAL CONVENING AUTHORITY AND HIS STAFF JUDGE ADVOCATE WHEN, 10 DAYS PRIOR TO TRIAL, THEY CONDUCTED A BRIEFING, ATTENDED BY MEMBERS OF THIS COURT-MARTIAL, ON “APPROPRIATE” LEVELS OF PUNISHMENT AND IMPLIED THAT THERE COULD BE ADVERSE CONSEQUENCES FOR FAILING TO COMPLY WITH THEIR VIEWS.
We hold that the military judge erred by refusing to grant the challenges for cause. In light of this holding, we do not decide the second granted issue.
The issues arose as a result of remarks made during a staff meeting several days before the trial. The remarks were attributed to Brigadier General (BGen) Marr, Commander of 62d Airlift Wing, and his staff judge advocate (SJA), Lieutenant Colonel (LtCol) Rollinger. The staff meeting covered a variety of topics, including a 15-20 minute presentation on standards, command responsibility, and discipline. The three most senior members of the court-martial panel were present during the command briefing. Neither BGen Marr nor LtCol Rol-linger was asked to testify at trial by either party, but during voir dire the three court members who attended the meeting described their perception of those remarks. Because Issue I concerns the members’ impartiality, our focus is on the impact of the remarks on the members rather than the exact language, intentions, or motivations of the speakers.
LtCol Snyder was asked during voir dire if he could judge appellant’s case based on the evidence and with an open mind. He responded in the affirmative but then explained:
Now, the nature of being a commander, you’re always having to make decisions and justify them at a minimum in your own mind, if not to your boss and the boss’s commander, which is General Man*. An influence that — most recently we had a commanders’ conference with General Marr where Colonel Rollinger, the Staff Judge Advocate, talked about, you know, standards____ So, there are always those pressures that are inherent with the job that you are weighing advice from the first sergeant, influences from things that you hear at the stand-up, from Colonel Kane, my boss, or General Marr, his boss, giving opinions on what they think is important with regard to the good order and discipline of their unit and your specific unit.
So, yes, I think I can be fair and impartial in this case, but there are factors that are just inherent with the job that are influences that I know enter into anyone in a command position.
LtCol Snyder said that BGen Marr also addressed the issue, telling the assembled officers “that we should use the SJA because he speaks for the Wing Commander.” With respect to the specific example cited by LtCol Rollinger, BGen Marr said that he had forwarded a letter to that commander’s new duty location expressing the opinion that “that officer had peaked.”
When asked if he felt that he would be subject to command influence if he voted for a sentence of “no punishment,” LtCol Snyder responded in the negative. He then volunteered that on one occasion he approached BGen Marr and explained his actions after taking disciplinary action that he did not think BGen Marr would agree with.
When asked if he would worry about a letter to a future superior that would cause his career to “peak,” LtCol Snyder responded that he would do what was right but that the remarks at the staff conference were “at a minimum in my subconscious and, you know, parts of it are very clearly in my conscious.”
A second member, Major (Maj) Taylor, remembered LtCol Rollinger describing a case involving sexual abuse of a child where the commander “did not act as he should have.” According to Maj Taylor, LtCol Rol-linger “said that he thought the commander probably should have been given an Article 15 for dereliction of duty and removed of his position.” Maj Taylor said that BGen Marr followed up with “a comment to the effect of, you know, that something on the order of he’s contacted or planning to contact the person that this previous commander worked for and that person’s career in the Air Force is probably not going to be a very lengthy one.”
When questioned about the impact of the remarks, Maj Taylor responded that she looks to the SJA for guidance and advice but that she is responsible for making the decision. She said, “I feel that my opinion is my opinion. Although it can be somewhat influenced by guidance and information out there, but it’s ultimately mine and I’m comfortable with that.”
On questioning by defense counsel, Maj Taylor explained, “I took away [from the staff meeting] what was the [SJA’s], Colonel Rollinger’s, opinion. I took away from there that the commander still has the ultimate responsibility to make the decision, administer the discipline, and that the Legal Office offered advice and guidance.”
A third member, LtCol MacPherson, remembered that LtCol Rollinger gave a presentation on the commander’s responsibility for maintaining good order and discipline. He said that LtCol Rollinger did give examples but that he would “have to think about it to come up with” them. LtCol MacPherson remembered that BGen Marr said that he “expected the commanders to be responsible for maintaining the order and discipline of their unit and that was their job, and that anybody that didn’t, he didn’t — they were appointed to the position because he expected them to maintain that and that was their charge when he put them in there.”
LtCol MacPherson said that he did not remember LtCol Rollinger commenting about an officer’s career, but he did remember that BGen Marr mentioned sending a letter to a former commander’s superior. When defense counsel asked LtCol MacPher-son whether he had the impression that the officer in question “was going to suffer adverse consequences to his career,” he responded, “The impression definitely was there. The way it was left with me was there was a presentation, the Wing Commander was dissatisfied with the way things had happened and he wrote a letter to the individual’s now present supervisor.”
Defense counsel challenged LtCol Mac-Pherson, LtCol Snyder, and Maj Taylor for
Appellant now asserts that the military judge abused his discretion by refusing to grant the challenges for cause against LtCol MacPherson and Maj Taylor. He argues that the challenged members “could not be expected to ignore” the comments of BGen Marr, “especially in light of the actions taken against the offending commander.” Final Brief at 8. The Government argues that the military judge did not abuse his discretion and that removal of “the only member potentially affected eliminated any concerns about command influence.” Answer to Final Brief at 2.
RCM 912(f)(l)(N), Manual for Courts-Martial, United States (1995 ed.), provides that a court member “shall be excused for cause whenever it appears that the member ... [sjhould not sit as a member in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality.” This rule includes challenges based on actual bias as well as implied bias. United States v. Lavender,
Military judges must follow the “liberal-grant mandate” in ruling on challenges for cause. United States v. White,
We are less deferential on questions of implied bias. Implied bias is reviewed through the eyes of the public. Lavender, supra at 488; Napoleon, supra at 283, citing Daulton, supra at 217. The focus “is on the perception or appearance of fairness of the military justice system.” United States v. Dale,
The issue becomes more difficult when the basis of a challenge is founded on unlawful command influence. On the one hand, we recognize that a “member’s unequivocal statement of a lack of bias can ... carry weight.” United States v. Mosqueda,
We recognize a commander’s responsibility for discipline, the need occasionally for a more senior commander to intervene to prevent a miscarriage of justice, and the reality that an officer’s lax attitude toward discipline may reflect inaptitude for command. On the other hand, we have long recognized the problems arising in the administration of military justice because of the “subtle pressures that can be brought to bear by ‘command’ in military society____” United States v. Kitts,
In reviewing the issue concerning the challenges for cause, we focus on how the members perceived the briefing by LtCol Rollinger and the remarks of BGen Marr. Neither BGen Marr nor LtCol Rollinger was asked to testify, and thus we have only the fragmentary recollections of those who heard the remarks. The perceived message rather than the actual message is what controls, however, because we are concerned with how the message may have affected the impartiality of the court members.
This case, however, involves implied bias. Our concern is with the effect of subtle pressure exerted by the members’ perceptions of what they heard. They heard the Commanding General’s views of the career potential of a commander who had “underreacted” to a disciplinary situation. Unlike the situation involving intemperate remarks of a ship’s captain in United States v. Newbold,
The military judge commendably recognized the impact of the remarks on LtCol Snyder: In our view, however, the military judge did not fully appreciate that the same sword of Damocles was hanging over the heads of LtCol MacPherson and Maj Taylor.
We recognize that the remarks at issue were directed at the commander’s role in initiating disciplinary action rather than an officer’s role as a member of a court-martial. Nevertheless, LtCol MacPherson left the staff meeting with the clear impression that a fellow commander’s career was in danger of being abruptly ended because BGen Marr considered his response to a disciplinary situation inadequate. Although Maj Taylor adamantly insisted that “my opinion is my opinion,” she conceded that her opinion “can be somewhat influenced by guidance and information out there.” Under the circumstances, we hold that it was “asking too much” of LtCol MacPherson and Maj Taylor to expect them to impartially adjudge an appropriate sentence without regard for its potential impact on their careers. See Daulton,
The decision of the United States Air Force Court of Criminal Appeals is affirmed as to findings but reversed as to sentence. The sentence is set aside. The record of trial is returned to the Judge Advocate General of the Air Force. A rehearing on sentence may be ordered.
Chief Judge COX and Judge EFFRON concur.
Concurrence Opinion
(concurring in part and dissenting in part):
Our Court granted review of two issues in this case: Issue I, jury bias; and Issue II, command influence.
Both the majority and the dissent take a detour through the complicated jungle of “implied bias” as a way around the real issue in this case — the issue of command influence. More to the point, the real question is: Did the February 1995 commander’s meeting immediately before the Youngblood trial improperly influence or taint the three already selected Youngblood jurors present at that meeting?
Whether the jurors were tainted by the February commander’s meeting is an issue that can be decided by a review of the facts and our ease law. The record in this case shows the following relevant dates and events:
1. December 16, 1994 — Criminal charges against Airman 1st Class Youngblood were referred to a court-martial.
2. December 16, 1994 — Members of Youngblood’s court-martial selected, including Lieutenant Colonels Snyder and Mac-Pherson, and Major Taylor.
4. February 21, 1995 — Youngblood’s court-martial convenes. Snyder is removed for cause due to attendance at the commander’s meeting; however, MacPherson’s and Taylor’s removal for cause is denied.
BGen Marr’s remarks to his subordinate commanders at the staff meeting were highly inappropriate. See United States v. Martinez,
Today, the majority (with my concurrence) has found that the three court-martial members who attended this meeting were disqualified because of implied bias in this case. RCM 912(f)(l)(N), Manual for Courts-Martial, United States, 1984. It is not contact with command itself that caused these members to be disqualified but the type of contact which requires that result. See United States v. Thomas,
Plainly speaking, both sides in a court of law are entitled to a panel of fair jurors, jurors who have not had any pressure put on them to be lenient or to be harsh. The only allowable pressure on a juror is the duty to be fair. Whether a juror succumbs to any improper pressure is really not the main point. A jury system must appear fair for it to be recognized as fair. United States v. Ayala,
As Lord Chief Justice Hewart said:
A long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.[*]
As a final note, I am puzzled by the dissent’s attempt to paint BGen Marr’s “commander’s meeting” comments as a “general instructional or informational course[ ] in military justice” allowable under 10 U.S.C. 837(a)(1). In the first place, the statute’s plain wording allows only “general instructional or informational courses in military justice.” A general’s “commander’s call” or “commander’s meeting” is certainly not a “course on military justice.” In the second place, anyone who has served on active duty and who has attended a “commander’s meeting” knows that these meetings are used as a management tool for the commanding officer to get his orders, plans, and operational requirements transmitted to his subordinate commanders. Article 37(a)(1) is clearly not applicable here.
Notes
*Rex v. Sussex Justices [1924] 1 K.B. 259.
Dissenting Opinion
(dissenting):
Based on a challenge-for-cause issue, the Court holds that servicemembers who have heard a command briefing concerning discipline and inappropriate decisionmaking a relatively short time before a trial may not sit
FACTS
The court members at issue, Lieutenant Colonel (LtCol) MacPherson, LtCol Snyder, and Major (Maj) Taylor, who were questioned individually, testified that at a monthly commanders’ conference, Brigadier General (BGen) Marr and his staff judge advocate (SJA), LtCol Rollinger, addressed a number of topics, including a child abuse case involving a suspect with a history of past child abuse in which little or no action was taken, and a statutory rape case for which punishment was given pursuant to Article 15, Uniform Code of Military Justice, 10 USC § 815. BGen Marr thought that the officer who acted on the child abuse case had peaked in his career and sent a letter to that effect to the gaining command. The full details of the conference are unclear.
The point BGen Marr was trying to make was put forth by LtCol MacPherson:
[T]he thrust of [BGen Marr’s] comments were basically that they expected the commanders to be responsible for maintaining the order and discipline of their unit and that was their job, and that anybody that didn’t, he didn’t — they were appointed to the position because he expected them to maintain that and that was their eharge when he put them in there.
The point was also made by LtCol Snyder: The general thrust of the briefing was that as commanders we have the responsibility to maintain certain standards; that the standards of the military may be somewhat different than a civilian world.
LtCol Snyder, Maj Taylor, and LtCol Mac-Pherson expressed the opinion that they would be comfortable with imposing a sentence of no punishment.
DISCUSSION
Command Influence
This ease is another example of the clash that sometimes arises between the need for good order and discipline and the need to maintain an impartial system of military justice. As we have stated:
The primary responsibility for the maintenance of good order and discipline in the services is saddled on commanders, and we know of no good reason why they should not personally participate in improving the administration of military justice. No doubt the personal presentation of that subject by the commander is impressive, but that is as it should be. The question is not his influence but, rather, whether he charted it through forbidden areas.
United States v. Danzine, 12 USCMA 350, 352,
Much more recently, this Court acknowledged that certain aspects of military law, such as questioning of suspects, not only facilitate criminal prosecutions but also provide commanders with essential information.
The primary purpose of military criminal law — to maintain morale, good order, and discipline — has no parallel in civilian criminal law. When a squadron commander ... asks an airman about suspected misconduct, the purpose of the inquiry is not simply to develop a criminal case. An important purpose is to provide that [service-member]’s commander with information about the capability of the individual to perform his or her military mission.
Military missions, whether in combat, in peacetime operations, or in training, are characterized by stress, tension, danger, and the need for rapid decisions based upon accurate information. The habits and traits of character developed in peace can make the difference between success or failure in war.
United States v. Solis,
The Military Justice Act of 1968, Pub.L. No. 90-632, § 2(13), 82 Stat. 1335, amended Article 37, UCMJ, 10 USC § 837, to allow general instructional or informational military justice lectures, including those given solely to members of a command, on substantive and procedural aspects of the military
Under some circumstances, this Court has held that lectures personally given by a commander to the court members did not have an impact on the trial. Compare United States v. Danzine, supra, with United States v. Littrice,
In contrast to Johnson and Brice, this Court did not find prejudice in two recent cases. In United States v. Reynolds,
Implied Bias
Under the Sixth Amendment, an accused has the right to “an impartial jury.” The Supreme Court has held that
due process does not require a new trial every time a juror has been placed in a potentially compromising situation. Were that the rule, few trials would be constitutionally acceptable. The safeguards of juror impartiality, such as voir dire and protective instructions from the trial judge, are not infallible; it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote. Due process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen.
Smith v. Phillips,
Only a rare circumstance justifies disregarding the members’ voir dire responses and the military judge’s findings. Appellant’s case is not such a circumstance. The majority has once again expanded the implied-bias doctrine unnecessarily.
Federal courts in addressing the same issue have indicated that the implied-bias rationale should be a “rare exception.” Hun-ley v. Godinez,
Relying upon this Court’s decision in United States v. Daulton,
The standard of review set forth by the majority undercuts the moral authority and .psychological support of the trial bench. The Court fails to realize that there is a collective judgment when certain findings or a sentence are announced. The deliberative process itself is protected. Mil.R.Evid. 606(b), Manual for Courts-Martial, United States (1995 ed.).
The nature of the general verdict was recognized by LtCol Snyder when he said:
I think the nature of a court-martial and the jury system, and as the judge said, the oath that I swore not to not only talk about it outside the courtroom but with other members at anytime is something that I take seriously and would cause it to be different than any of the other hypotheti-cals that we discussed. And could not be, you know, attributed directly to me.
Those who would try to penetrate the deliberative process and influence the court members’ actions are prohibited from doing so by Article 37.
The court members were instructed that they had the “grave responsibility” of determining a sentence “based upon all the evidence presented and the instructions.” They were instructed to consider all the alternative punishments and told they “may not have a preconceived idea or formula as to either the type or the amount of punishment.” All members indicated that they could reach a decision on the sentence “on an individual basis in this particular case____” These instructions ensured that the members would not rely upon the statements made by BGen Marr or LtCol Rollinger.
In any event, any error was harmless. United States v. Bannwarth,