Thursday, November 13, 2008

CAAF reverses AFCCA on member challenge issue

CAAF's docket continues to rocket. Today, without even waiting to order briefing on the merits or hear oral argument, CAAF reversed an unpublished AFCCA decision in a member challenge case. United States v. Martinez, __ M.J. ___, No. 08-0375 (C.A.A.F. Nov. 13, 2008) (per curiam).

Martinez, which we previously discussed here, was a guilty plea members sentencing case for methamphetamine use. One of the members stated during voir dire that "my guideline has always been that there's no room in my Air Force for people that abuse drugs." When the defense counsel later asked the member whether no punishment was "an option for you to consider in a case such as this," the member answered, "No." Upon further questioning, the member indicated that while he could consider not adjudging a bad-conduct discharge, he believed that there had to be some punishment. The defense challenged the member for cause and the military judge denied the challenge.

AFCCA affirmed, holding that the member's "comments demonstrate a level of professional commitment to the unique requirements of military service and the importance of good order and discipline in the military. These qualities alone neither create a perception of unlawful command influence nor serve as a basis for an assertion of implied bias." United States v. Martinez, No. ACM S31080, slip op. at 10 (A.F. Ct. Crim. App. Jan. 2, 2008) (per curiam).

The defense submitted a supp to CAAF challenging the military judge's and AFCCA's rulings. JAJG responded by submitting a 10-day letter. CAAF then ordered JAJG to "submit an answer to the supplement within 15 days of the date of this order." United States v. Martinez, 67 M.J. 13 (C.A.A.F. 2008).

Today, CAAF granted the petition and proceeded to reverse AFCCA and the trial judge, holding that the member was disqualified on implied bias grounds. (Because it found implied bias, CAAF reserved judgment on whether the member was also disqualified due to actual bias.)


Dew_Process said...

Now, if only the AF CCA would recognize that Courts are also required to provide "justice" versus merely being a vehicle to enforce "good order and discipline," they might be on to something......

John O'Connor said...

One of the (many) problems with member sentencing is that the law of member challenges reaches absurdity in the "consider full range of authorized punishments" context. You can have a murder case, and the DC will ask the members if they could consider giving no punishment if they found the accused guilty of murder. Of course, any member saying "yes" is probably lying or fooling himself. So you end up with this ridiculous kabuki dance when a member forthrightly says he really couldn't imagine considering no punishment for a conviced murderer, or a drug dealer, or a child molester, and the TC and MJ try to put words in his mouth to say something that probably isn't true (and probably can't be true).

Anonymous said...

What is implied bias? Some bias that would lead an objective observer to question whether the accused received a fair hearing. Here, in a sentencing case where the accused pleaded guilty to using meth, the challenged member said in voir dire that under Air Force guidelines, illegal drug use isn't tolerated and there wasn't room in the Air Force for such types. Fair general statement. Also, the member stated that if someone used illegal drugs, he should receive some punishment. Another fair general statement. The military judge then clarified with the member that he would be able to consider the full gamut of sentencing options. Fair general rehabilitation.

The military judge and three CCA judges - all fairly objective observers - rejected a challenge for cause because they believed that the accused could receive a fair sentencing hearing with this member. I find nothing in the record to overturn that decision.

Apparently, CAAF is composed of better objective observers - like obscenity, they know implied bias when they see it. The rest of the world is left to guess.

Well, if CAAF judges are better observers, then why didn't they see any implied bias in US v. Elfayoumi, 66 MJ 354, when the challenged member in a forcible sodomy case said he had STRONG moral and religious objections to homosexuality and pornography. According to CAAF, that member was okay. So how can CAAF reconcile the result in Martinez with the result in Elfayoumi?

Easy. CAAF ignores Elfayoumi. Elfayoumi, CAAF's latest iteration of the implied bias circus, isn't even mentioned in Martinez. In my opinion, that failure to distinguish the two cases borders on judicial cowardice.

Bill said...

This is a very bizarre area of law. The CAAF probably got it right but the rule that requires a panel member to say he will consider "no punishment" even in a murder case is absurd.

Anonymous said...

Just for kicks, how about this one: If you were a panel member in a situation where a Special Forces Soldier shot and killed a hooded and bound Osama Bin Laden, if he was found guilty would you consider no punishment?

That is the only hypothetical I can think of where that passes the laugh test. Otherwise, its a silly question.