United States v. Cashin--ACCA

Cashin was tried and sentenced by an "officer" panel.

Findings: G of A&B and obstruction of justice. NG of "multiple" rapes.

Sentence: 14 days confinement and a Dismissal.

Issue. Abuse of discretion in denial of a member challenge.

         The court gives lengthy quotes from the voir dire and is helpful in exploring sexual assault policy, commander, and command requirements.

[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.

Findings and sentence set-aside.