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).