Court of Appeals for the Armed Forces

No. 24-0172/AR. U.S. v. Rodrigo L. Urieta. CCA 20220432. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:
 
WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY DENYING THE DEFENSE CHALLENGE FOR CAUSE AGAINST A MEMBER WHO BELIEVED A SOLDIER WHO HIRED A CIVILIAN DEFENSE COUNSEL DID NOT BELIEVE IN HIS DEFENSE.

ACCA's decision is a 'straight line' affirmance. But the briefs are available through the link above. The issue was raised below. The Appellant wrote in part,

The defense requested individual voir dire of XRAY, based in part because “he had some negative impression of civilian defense counsel.” (R. at 286). XRAY believed that “hiring an outside civilian lawyer means that you don't trust your defense very much.”

When XRAY was pressed on whether he would hold appellant’s decision to hire civilian defense counsel against his military defense counsel, said, “wouldn't hold it against you, no – it's just of perception.” was sure there is a perception issue with hiring civilian defense counsel.

XRAY further explained his attitude regarding civilian defense counsel.

“In my experience, I have only ever seen people hire civilian counsel after they have already been through the trial and their lawyers had let them down – I wouldn't say let them down. They didn't get the outcome they were looking for, so they went to retrial with a civilian lawyer, instead of a military [defense counsel].”

The military judge tried to clarify ’s statements:

MJ. You said that you believe that hiring a civilian counsel means that you don't trust your defense very much.

XRAY "I did."

MJ. When you say, "your defense," do you mean your defense counsel, as in the attorneys? Or do you mean the defense as in the case that you're going to present?

XRAY. All of it. (emphasis added).
​
The trial counsel attempted to rehabilitate , but was adamant that when an accused hires a civilian counsel it means the accused does not trust the military justice system.

The military judge denied a challenge for actual and implied bias and "did consider the liberal grant mandate[.]" We learn from the Appellee's brief that the member was a Sergeant First Class (E-7). From the Appellee's brief we get a little more context on the voir dire.

When asked by the military judge to clarify what SFC  meant by “you don’t trust your defense very much,” SFC  replied that he meant both the defense counsel and the case the defense counsel planned to present.
 
The trial counsel directly asked SFC XRAY if he believed appellant was guilty solely because he hired a civilian defense counsel. SFC XRAY replied “I don’t think it’s an admission of guilt, or a thought of guilt…it is just unusual to me…[it has an] outside perception of, yes, when you hire a civilian attorney, that basically, you don’t trust the system from the military standpoint—that you have to go outside the military to bring somebody in.”

The trial counsel again directly asked SFC XRAY whether appellant’s hiring of civilian defense counsel would negatively affect SFC XRAY’s view of the appellant during trial. “[I]f you're selected and you're weighing the facts, and weighing the evidence, considering everything, are you going to hold it against [appellant] because he's hired a Civilian Defense Counsel…Will you consider that at all in reaching a finding during your deliberations?”  SFC XRAY replied, “Not at all…just the facts.” 

The line of questions was before rolling the dice and before peremptory challenges. The brief indicates XRAY was not the only member challenged--importantly. "The defense also challenged OSCAR for cause, and the military judge also denied that challenge. The defense used their sole preemptory challenge on [an assumption because names are redacted in the briefs] OSCAR." Thus preserving the issue as to XRAY. Another assumption is that XRAY sat as a member--would it make a difference if, after rolling the dice, XRAY was not one of the eight on the A-Team and didn't get promoted due to other challenges?

Would it have helped if the parties or military judge had asked XRAY to expand on his "experience" and what lead him to his conclusions--would that have made it easier for the appellate courts. Was his "experience" based on gossip or supervision of Soldiers facing court-martial who have complained to him about their MDC and the system, or ???