Affidavits from appellant's military and civilian defense counsel outlined their efforts in preparing both character and mitigation evidence for the pre-sentencing hearing and the tactical reasons for ultimately editing the presentation of that evidence. Appellant's military defense counsel submitted an affidavit stating she interviewed several family members, friends, supervisors, and colleagues of appellant and prepared those witnesses to testify at appellant's pre­sentencing hearing. Concerned that good soldier evidence would allow the government to present evidence of appellant's prior misconduct of an unfounded allegation of and obstruction of justice, civilian defense counsel requested this testimony be reduced to written statements.

As trial approached, the civilian defense counsel made a tactical decision not to admit any documentary evidence during the pre-sentencing hearing in an effort to prevent the government from potentially submitting rebuttal evidence of appellant's prior misconduct.' According to the military defense counsel's affidavit, she did not agree with the civilian defense counsel's approach to severely limiting the presentation of written character statements. However, the military defense counsel's affidavit states that appellant ultimately agreed with the advice of his civilian defense counsel to not admit any character letters during the pre-sentencing hearing. The civilian defense counsel's affidavit stated that, on at least three occasions, he discussed his strategic decision to limit pre-sentencing evidence of appellant's good military service in order to avoid opening the door to the government admitting information of appellant's prior misconduct and appellant agreed with that approach. Rather, the civilian defense counsel determined that it would be best to wait and submit the written character statements in appellant's post-trial submission to the convening authority.

In 2013, appellant was investigated for the offense of [X]. While the [X] was unfounded, there was evidence in the investigation that appellant made efforts to obstruct justice during the investigation by asking a witness not to talk to the military. Appellant's witness production request included ten witnesses, both military and civilian, that appellant asserted would testify as to his rehabilitative potential during the pre-sentencing hearing. Given that appellant plead guilty to obstruction of justice approximately five years after his prior attempt to do so was relevant information as to both appellant's good military service and rehabilitative potential. The government could have utilized appellant's prior efforts to obstruct justice by: (1) cross-examining his character witnesses about this prior misconduct in order to test the strength of their opinion as to his rehabilitative potential, or (2) presented the information as rebuttal evidence concerning appellant's rehabilitative potential or good military service. See Scott, 81 M.J. at 86 (C.A.A.F. 2021) ("[R]ecogniz[ing] that, in some cases, trial defense counsel may not wish to call witnesses on sentencing who, through their testimony, may open the door for the government to present additional adverse evidence."). 

[The] decision to constrain the presentation of character evidence reasonable under the circumstances. See United States v. Datavs, 71 M.J. 424 (C.A.A.F. 2012) (Defense counsel do not perform deficiently when they make a strategic decision to accept a risk or forego a potential benefit, where it is objectively reasonable to do so.").

Despite appellant's assertions to the contrary, the conduct to which appellant pied guilty was significant in not only attempting to impede a law enforcement investigation but leveraging his rank and position of authority to influence subordinates to commit a criminal offense for his benefit. Even if defense counsel presented the few pages of medical evidence of appellant's - diagnosis in 2017 and appellant's ERB, there is no "reasonable probability" that the sentence would have been any different given the severity of appellant's misconduct.

Cheers, Phil Cave

[T]he military judge's factual findings were-while perhaps not clearly erroneous-not exactly correct. Between the military judge and trial counsel, the concept of "walling off experiences as a battalion commander was attributed to LTC x multiple times. However, LTC x never used that phrase; rather, it was incorporated into the military Judge's and trial counsel's voir dire questions. The military judge quoted LTC as saying, "At the end of the day, I can wall it off. I can judge this case on the facts." However, LTC did not expressly say this.
. . . 
We agree that LTC x was not actually biased toward finding appellant guilty. While we note that some of his responses were arguably equivocal, we place significant weight on the military judge's assessment that LTC x was credible and forthcoming. Reviewing a cold appellate record, we are ill-positioned to assess LTC x's demeanor as he answered voir dire questions. Were LTCs "probably[.]" and "it's difficult[.]" answers actually indicators of equivocation? Was his commitment to "try to be objective" sufficient? For purposes of actual bias, we do not disturb the military judge's denial of the challenge However, viewed in totality and in assessing implied bias, we find LTCs voir dire answers "less than resounding."
 
Lieutenant Colonel x also described himself as directly involved in changing the culture in his battalion regarding sexual harassment and sexual assault. While he did not explicitly detail his methods in bringing about this culture change, we gather an overall theme from his voir dire: support alleged victims. This theme is consistent with the Army's institutional-level approach, and nothing in this decision should be interpreted as criticizing it. We simply note that Army senior leaders require commanders and other leaders to be personally and decisively engaged in preventing and responding to allegations of sexual harassment and sexual assault as a fundamental part of effective command and leadership. Mindful of this
institutional backdrop, military justice practitioners should be prepared to reliably assess, discuss, and decide whether those same commanders and leaders are actually or impliedly biased when sitting in judgment of cases involving alleged sexual assault or sexual harassment. Prospective panel members who cannot table their obligation to support the Army's strategic objectives in favor of their controlling duty to be fair and impartial cannot serve, because they are actually biased. Yet even when a member convinces a military judge that they can, as a matter of fact, fairly and impartially decide the case, it is a separate question whether they should, as a matter of /aw-especially where the public perceives obedience to orders and commands as a defining feature of military service. As a result, when a close call materializes regarding a panel member's suitability, defense causal challenges must be liberally granted.