Erdmann/Baker on implied bias, or Hello Dolly Sods

United States v. Townsend, __ M.J. ___, No. 07-0229/NA (C.A.A.F. Feb. 5, 2008), isn't an earth-shattering case. It breaks no new legal ground, but rather applies existing implied bias case law to the facts of this case and upholds allowing the challenged member to sit. But much like United States v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006), Townsend is more interesting for Judge Baker's separate opinion than for its actual holding.

The implied bias challenge to "LT B," who was a night law student, was based on his desire to become a prosecutor to "put[] the bad guys in jail" and "keep the streets safe," his dislike of civilian defense counsel based on watching Law and Order, his father's law enforcement status, and his "healthy respect for law enforcement, and people in authority." Id., slip op. at 3-4. But Petty Officer Townsend was represented by a military defense counsel, not a civilian, and LT B affirmed his "belief that Townsend was innocent until proven guilty beyond a reasonable doubt." Id., slip op. at 4. LT B also assured the court that "he would be able to follow the military judge's instructions if they differed from information he had learned at school," and that he "would try to be objective about everything." Id. LT B also said that he would not automatically believe the testimony of a law enforcement officer. Id. at 5. (Interestingly, though I don't see this mentioned in the opinion's analysis, Petty Officer Townsend was a Master-at-Arms.) The defense challenged LT B for cause, the military judge (CAPT Rolph) denied the challenge, and the defense peremptorily challenged a different member.

CAAF initially held that it would accord the military judge's decision diminished deference because he did not indicate on the record either that he had considered the implied bias issue (as opposed to actual bias) or that he had applied the liberal grant mandate in ruling on the challenge. Id., slip op. at 9-10. The majority also reasoned that because actual service in a law enforcement capacity is not a per se disqualification from serving as a member, merely being related to a law enforcement official cannot be per se disqualifying either. Id., slip op. at 10. The majority similarly reasoned that a lawyer isn't per se disqualified unless he or she has served in a specific disqualifying role, so an aspiring lawyer is not per se disqualified. Id., slip op. at 11. CAAF concluded that neither any individual matter raised nor all the matters considered cumulatively rose to the level of implied bias.

Judge Baker wrote a separate decision "dubitante" in which he "reluctantly" concurred. Judge Baker's first sentence makes his position clear: "The liberal grant mandate exists for cases like this." To Judge Baker, while the military judge did not abuse his discretion by rejecting the challenge, he sure should have granted it.

Judge Baker reviewed many of the individual factors that might have influenced LT B's outlook and then offered this poetic simile: "As with the trees at Dolly Sods, the wind only blows in one direction." (I had to look it up: Dolly Sods is an area in West Virginia's Allegheny Mountains where, according to wikipedia, "strong winds blowing continuously from the west have caused some trees to have branches only on the east side (they are 'flagged')."

Judge Baker's opinion included an aggressive restatement of the reasons for the liberal grant mandate (which, as the majority reminds readers, applies only to challenges lodged by the defense):

First, in a system of panel selection where the convening authority selects the pool of members and the parties only have one peremptory challenge, application of the liberal grant concept helps to address questions that may linger in public perception regarding the appearance of bias in the selection of members.

Second, this court-martial took place at Norfolk Naval Station [the largest Navy base in the world]. There is no indication that there were national security reasons why the potential pool of members was small, perhaps necessitating a "tie goes to the government" approach on implied bias.

Third, appellate review of member challenges is an ungainly, if not impractical, tool to uphold and reinforce the importance of Rule for Courts-Martial (R.C.M.) 912 in military justice practice. Among other things, appellate courts do not have the benefit of hearing the tone of a response or to observe the demeanor of voir dire responses. Further, where matters of appearance and nuance rather than clear error are involved, courts might well be hesitant to reset the clock. And yet, from within the system, it may be particularly hard to discern the extent to which member selection is viewed in public circles as a weak link in the otherwise strong chain of military justice. Hence, trial judges are repeatedly enjoined at the appellate level to consider questions of implied bias and to do so on the record.

As we have previously noted, Judge Baker has authored a large part of CAAF's recent jurisprudence dealing with member challenges. I suspect that we will soon see portions of his dubitante opinion appearing in opinions for the court.