Court of Appeals for the Armed Forces

United States v. Keago

Appellant challenged fourteen potential panel members for actual and implied bias. The military judge granted six of Appellant’s challenges but denied the other eight. Before this Court, Appellant argues that the military judge erred in denying both his actual bias and implied bias challenges against three of the panel members. We first hold that the military judge did not abuse his discretion in denying Appellant’s challenges for actual bias. We also hold, however, that the voir dire responses of two of the members presented close cases of implied bias. Because the liberal grant mandate requires military judges to excuse potential panel members in close cases, the military judge erred by denying those two challenges.

The takeaways:

1. The courts apply an objective test to an implied bias challenge.

2. If there is a "close call" on an implied bias challenge, the MJ is "enjoined" to remove the challenged member because they must err on the side of granting the challenge. United States v. Peters, 74 M.J. 31, 33 (C.A.A.F. 2015); United States v. Clay, 64 M.J. 274 (C.A.A.F. 2007). Judge Hardy also writes that the "liberal grant mandate prohibits the MJ from denying the challenge." In a footnote, he explains that some cases have suggested a more limited application of the liberal grant mandate, but those cases are of "little precedential value" after Clay and Peters.

​3. A reminder that the liberal grant mandate is unavailable to TC, citing United States v. Clay; United States v. James, 61 M.J. 132, 139 (C.A.A.F. 2005).

Judge Sparks concurs and dissents in part. "[T]he Court has applied a standard of review for implied bias challenges that has long been unhelpful and is itself in need of review."

Judge Maggs dissents and writes "separately to note that implied bias cases are difficult because our precedents require military judges to decide them using vague and questionable standards." He goes on, "reconsideration of the test for implied bias, the liberal grant mandate, and the standard of review might benefit the military justice system. But until a party asks this Court to revisit our precedents—or until amendments to the Uniform Code of Military Justice or R.C.M. supersede them—we must simply do our best to apply their holdings." 

Note, the federal courts also will apply its version of implied bias. "Challenges for cause are generally based on actual bias, implied bias, or inferable bias." See United States v. Torres, 128 F.3d 38, 43 (2d Cir. 1997), cert. denied, 523 U.S. 1065 (1998); United States v. Greer, 285 F.3d 158, 171 (2d Cir. 2000). United States v. Velez, 48 M.J. 220 (C.A.A.F. 1998) cites to Torres, 128 F.3d at 45-47 ((distinguishing limited challenges of implied bias per se from more common but permissible challenges of inferred bias). See also, United States v. Napolitano, 53 M.J. 162, 167 (C.A.A.F. 2000) ("We have previously noted the trend in federal circuit courts to distinguish "implied" bias situations from "inferred" bias situations.").

United States v. Williams

At first blush, a straightforward case of sentence reassessment at the CCA, with Judge Sparks's Restatement on Reassessment that, "This Court will set aside a sentence reassessment by a Court of Criminal Appeals only when necessary to correct an obvious miscarriage of justice or an abuse of discretion. United States v. Harris, 53 M.J. 86, 88 (C.A.A.F. 2000)." The opinion finds that the CCA properly evaluated the non-exclusive list of factors in Winckelman.

In Winckelmann, 73 M.J. at 15-16, we set forth the following list of four illustrative, although not exclusive, factors for the lower court to consider in determining whether to reassess a sentence or order a rehearing on the sentence:

(1) Dramatic changes in the penalty landscape and exposure.
(2) Whether an appellant chose sentencing by members or a military judge alone. . . .
(3) Whether the nature of the remaining offenses capture the gravamen of criminal conduct included within the original offenses and, in related manner, whether significant or aggravating circumstances addressed at the court-martial remain admissible and relevant to the remaining offenses.
​(4) Whether the remaining offenses are of the type that judges of the courts of criminal appeals should have the experience and familiarity with to reliably determine what sentence would have been imposed at trial.

The rub is that the there was a MJA retrial after the first members case was busted. This led the Appellant to argue:

​the lower court failed to adequately analyze the final three Winckelmann factors. Appellant takes issue with the lower court finding that the second Winckelmann factor weighed in favor of reassessment because he was sentenced by a military judge at his second court-martial when “[t]he real sentence to be evaluated is the one adjudged at Appellant’s first courtmartial—done by members.” Appellant argues that the third Winckelmann factor did not favor reassessment because although he stands convicted of four instances of forcible sodomy of SW these crimes were not the gravamen of his misconduct when compared to the rape of TW. Finally, Appellant contends that the fourth Winckelmann factor did not favor reassessment because the lower court was not familiar with the remaining offense of forcible sodomy because it has not been a criminal offense since 2016.

The problem comes from the CCA's 

​analysis [which] considered both the first court-martial offenses and the rehearing offenses during its sentence reassessment review. Although Appellant was no longer found guilty of an offense that was not considered at his first court-martial when the lower court set aside the child sodomy conviction, this does not mean that the lower court was permitted to use the first court-martial, aside from the sentencing cap, in its sentence reassessment of the rehearing.
. . . 
We do not sanction the lower court’s Winckelmann analysis for factors three and four that used the first court-martial’s rape offense in its analysis. Nonetheless, Appellant forcibly sodomized and assaulted SW on multiple occasions. The offenses he is convicted of have a maximum confinement sentence of life without eligibility for parole.

Accordingly, a BCD, 19 years, TF, and RiR are affirmed.