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Bagstad is easily the more interesting of the two. United States v. Bagstad, __ M.J. ___, No. NMCCA 200602454 (N-M. Ct. Crim. App. Dec. 30, 2008). In Bagstad, one of the detailed members -- a Marine Corps captain -- wrote the fitrep of another member -- a gunnery sergeant. The trial defense counsel lodged an implied bias challenge to the captain, arguing that he writes another member's fitrep, that the CA (the CO of a Combat Service Support Group) is his reporting senior, that he and the CA discussed military justice and the CA's view of military justice, and that the captain was reluctant to speak about his conversation with the CA. The military judge had asked for and received assurances from the gunny that he wouldn't be inhibited by the captain and from the captain that he wouldn't feel undermined if the gunny disagreed with him. The military judge denied the challenge to the captain, in the process disagreeing with the defense's characterization of the captain's discussion with the CA. The defense then used its peremptory challenge against another enlisted member.
That's where things get interesting. The panel was left with three members. Two-thirds of those members (the percentage necessary to convict) were in a direct reporting relationship. The appellate defense counsel in the case (Capt Burgos) alertly noted that that's awfully similar to the situation in United States v. Wiesen, 56 M.J. 172 (C.A.A.F. 2001), where CAAF held that the military judge erred by denying a defense challenge for cause against a colonel who was in the direct reporting chain of a sufficient number of members to control the case's outcome.
But, held NMCCA, this case is sufficiently distinguishable from Wiesen to result in a different outcome. NMCCA reasoned:
Although we are faced with a panel containing a senior-subordinate relationship comprising two-thirds of the panel membership, as in Wiesen, the contextual facts are quite different. First, this case involves a [challenge to a] company-grade officer as opposed to [Wiesen, which involved a challenge to] a senior field-grade officer. This difference alone serves to significantly diminish a knowledgeable perception that military deference to a senior officer would play a role in deliberations. We further note that GySgt Walston had seven more years of experience in the Marine Corps than Capt Stojka and was three years his elder. This inversion of military and life experience between the senior and subordinate does not appear to have been the case in Wiesen. This inversion of experience also significantly diminishes any knowledgeable perception that GySgt Walston would blindly follow his supervisor's lead. Moreover, the other panel member, 1stSgt Nguyen, like GySgt Walston, was a senior noncommissioned officer (NCO) with considerable experience; he was a veteran of both the conflicts in Afghanistan and Iraq, and had 14 years of service in the Marine Corps. The camaraderie between, and respect and deference for, senior NCO's, is significant. The presence of two experienced NCO's on the panel further weakens any reasonable perception that GySgt Walston would be improperly influenced by Capt Stojka's supervisory position.Bagstad, No. NMCCA 200602454, slip op. at 5.
Further, unlike Wiesen, which featured multiple subordinates, the instant case reveals only a single senior-subordinate relationship. The six senior-subordinate relationships in Wiesen included three lieutenant colonels that a knowledgeable public might reasonably perceive as competing for promotion. This fact alone creates a source of potential pressure for the subordinates to attempt to curry favor from their superior. No such competitive grouping exists in the instant case.
Today's other published NMCCA opinion, United States v. Trew, __ M.J. ___, No. NMCCA 200800250 (N-M. Ct. Crim. App. Dec. 20, 2008), involves the deathly boring Walters line of cases. See United States v. Walters, 58 M.J. 391 (C.A.A.F. 2003). That line of cases provides that a CCA may not affirm a finding of guilty where a divers occasions spec has been changed to a single occasion spec unless the record makes clear what single occasion resulted in the conviction. In Trew, a military judge made comments after announcing findings indicating that she found the accused guilty of one battery rather than divers batteries. NMCCA found that in the peculiar context of this case, it was clear which occasion she was referencing, thereby delivering the case from Walters' clutches (I'm paraphrasing).
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So I guess CAPT Geiser would find giving the JAG a third-star unnecessary. All the JAG needs is some age, forget the stars.
Some flaws:
1. A servicemember is more apt to be influenced by someone he works with more immediately - a company-grade officer - than a distant senior field-grade officer.
2. Battlefield scenario: Capt Stojka order GySgt Walston to attack a bunker. But GySgt Walson refuses. He points out that he has seven more years of experience in the Marine Corps than Capt Stojka and is three years his elder.
3. An appellate court has grossly misstated the legal standard. It is not the risk that one "would blindly follow his supervisor's lead," this is an intentional overstatement to cushion the impact of announcing a new standard.
4. The composition of the panel vis-a-vis other members is a red-herring. The other NCO panel member might be siding with Capt Stojka, thereby enhancing the pressure and influence on the other NCO, not diminishing it.
Why is it that appellate courts only announce "clear rules" when they are pro-prosecution? Here is a simple rule: Military supervisors should not be on the same panel as their subordinates.
Such a rule would obviate contaminating clear chain-of-command law with unwritten and imaginary rules of military etiquette. Dare I say that CAPT Geiser is relying on "penumbras" of military culture?
CAAF needs to look at this case - even if it ultimately agrees with NMCCA's conclusion - so it can clearly and soberly announce the supervisor-subordinate panel rule, and not misstate it, like CAPT Geiser gratuitously did, as scrutinizing the risk that one "would blindly follow his supervisor's lead."
Guarantee that Baker will reverse Geiser on Bagstad. Implied bias poses too much granularity for Baker to turn his head.
50-50 chance that Erdmann will reverse Geiser on Trew.
Like Dracula, some issues like "implied bias" and "divers occasions" never die.
Of course, the issue in Bagstead could have been avoided all together had the TC not ojected to the challenge or the MJ simply granted it. Instead, they create years worth of appellate review for what should have been a non-issue.
Anon 0600: Hopefully someone from the Appellate Defense shop will forward your observations to Bagstad's appellate counsel. They are cogent arguments for en banc consideration if for no other reason than to clarify the standard.
And, under the law of "unintended consequences," the Court's language if inserted into a fraternization case, e.g., a 24 year old, 0-2, RN with 2 years AD and a 39 year old E-7, med tech, with 19 years of AD, turns the concept of Officer Responsibility on its head.
But, Bill C gets my **SALUTE** of the Day!
Right on! That TC might have given Bagstad his ticket to a third trial versus having a "clean" record. Of course, the MJ ultimately was responsible for a bone-headed move in not granting the challenge, no doubt because he didn't want to delay the case to replentish the panel.
There is also a subtle ethical issue here - is the TC objecting to the challenge for tactical reasons, e.g., greater certainty of a conviction, versus the "interests of justice?" It's one thing to be a forceful advocate, it's another to blindly oppose anything the Defense suggests.
Switch chairs - had TC made the challenge, does anyone seriously doubt that the MJ would have denied it over DEFENSE objection?
The government already controls the process whereby members are "nominated" for court-martial duty, so they should not get the benefit of the doubt on challenges for cause that have some factual merit.
Upon further review....
Having finally had a chance to read Trew, in the interests of fairness, it was probably correctly decided albeit for the wrong reason - Waiver.
But, the case is a good "teaching instrument" - it does not appear that either party made a RCM 918(b), motion - something that imho in a contested Judge Alone case is IAC for many different reasons for DC NOT to request.
But, Trial Counsel can also (and as this case shows) make the Motion, especially where the known facts are "fluid" as they say.
On an appeal that I was recently retained on, after reading the record with a complex "causation" issue having been litigated, I called the detailed counsel to ask why the original Civilian DC didn't make a RCM 918(b), motion - she didn't know what I was talking about, and since the CDC had no military law expertise, it obviously wasn't done.
Live and learn - at the Accused's expense!
I'll echo the comment giving a BZ to Bill C. TC have to understand that winning every battle opens to the door to losing the war. Another example of inexperience and/or blind ambition of prosecutors fouling-up an easy case.
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