May is Chester Challenge Month

Having already reversed Col Chester this month for denying a challenge for cause against him, United States v. Greatting, 66 M.J. 226 (C.A.A.F. 2008), CAAF today reversed Col Chester because he erroneously denied a challenge for cause against a member. United States v. Bragg, __ M.J. ___, No. 07-0382/MC (C.A.A.F. May 27, 2008).

In Bragg, Judge Baker returns to his traditional role as CAAF's primary expositor of the law of members challenges. Judge Baker's opinion of the court was unanimous.

Staff Sergeant Bragg was a recruiter charged with several offenses including, most seriously, raping two high school students. He was tried at Marine Corps Recruit Depot San Diego. One of the members in the case, LtCol W, had previously served as the deputy assistant chief of staff for recruiting. In that position, he received briefings when recruiters were relieved for cause. He knew about SSgt Bragg's case and was able to recall some specific facts about it, "including the nature of the offense, the general identity of the victim, and investigatory measures undertaken by the police." Id., slip op. at 3. While he wasn't sure whether he learned the information from a relief for cause packet or from newspaper reports, he stated that he believed he read the investigation report about SSgt Bragg's alleged offenses. Id. LtCol W's statements suggested that he probably read the relief for cause package and he may have even recommended SSgt Bragg's relief. But he assured the military judge that he could be impartial in the case.

In a stunning violation of the liberal grant mandate (my characterization, not CAAF's), Judge Chester denied a defense challenge for cause against LtCol W, ruling that his "answers and candor . . . and body language" indicated he would be impartial and decide the case based solely on the evidence presented in court. Id., slip op. at 4. The defense exercised its peremptory challenge against LtCol W, but indicated that had the challenge for cause been granted, it would have exercised its challenge against another member. Because the case was tried in 2004, before the ugly 2005 "Wiesen fix" to R.C.M. 912, that was sufficient to preserve the issue and allow CAAF to unanimously reverse.

CAAF reversed the trial judge's ruling on the basis of implied bias. CAAF reasoned: "Implied bias and the liberal grant mandate allow a military judge to uphold the letter and spirit of R.C.M. 912 without at the same time questioning a member's statement that he can sit with an open mind." Bragg, slip op. at 7. CAAF concluded that "no matter how sincere the particular member, we have substantial doubt that it is fair for a member to sit on a panel where that member has likely already reached a judgment as to whether the conduct in question has occurred. Such a conclusion is compounded when it is likely that the same member has reached such a conclusion based on facts contained outside the record." Id., slip op. at 8. CAAF then reminded trial judges, "The liberal grant mandate exists for cases like this." Id.

In light of not only this unanimous slam dunk but also the facts themselves, it is curious that NMCCA didn't address this issue when it affirmed the findings and sentence in an unpublished opinion available here. United States v. Bragg, No. NMCCA 200600228 (N-M. Ct. Crim. App. Feb. 21, 2007).