For Appellant: Lieutenant Junior Grade Robert Attanasio, JAGC, USN (argued); Lieutenant James P. Benoit, JAGC, USNR (on brief).
For Appellee: Captain Paul D. Kovac,
Colonel Charles Wm. Dorman, USMC, Commander D.H. Myers, JAGC, USN, Major William H. Borden, USMCR, and Captain Michael D. Carsten, USMC (on brief); Major Stephen Finn, USMC.
Military Judge: Eric J. Barnett
Contrary to her pleas, appellant was found guilty by a general court-martial composed of officer and enlisted members of attempt to possess LSD with intent to distribute and attempt to distribute LSD, in violation of Article 80, Uniform Code of Military Justice, 10 USC § 880. Appellant was sentenced to a bad-conduct discharge and reduction to the lowest enlisted grade. The convening authority approved the sentence as adjudged. The Court of Criminal Appeals affirmed the findings and the sentence in an unpublished opinion.
On appeal, this Court specified the following issue:
Q. Lieutenant J, I noticed that you indicated when it was asked concerning the appropriate punishment. You indicated that a BCD was the appropriate punishment in a drug case. Would you be able to listen to all the evidence presented here today before making your decision concerning a sentence?
Q. Would you consider the maximum punishment all the way down to the minimum punishment which is no punishment when---
MJ: If it were necessary that we get to sentence.
MBR (LT J): Yes.
Questions by the defense:
Q. If sentencing becomes necessary in this case, during the group voir dire I asked a question, "If sentencing were to become necessary pertaining to punitive discharge from the service," your response was, "Yes, a BCD or a dishonorable discharge would be mandatory" in your eyes. Is that correct?
A. That is correct.
Q. So you feel that regardless of the circumstances, if a person is found guilty of drug misconduct that person must necessarily be separated, discharged from the navy?
A. If the person is found guilty, yes.
Q. No ands, ifs or buts?
A. Not in my personal opinion. And I would consider all the facts and all the extenuating and mitigating circumstances. But my personal opinion is anybody that is convicted of dealing drugs or trafficking drugs or things of that nature that I personally feel that they should be discharged from the Navy, dishonorably or through bad-conduct discharge.
Q. In regard to mitigating circumstances, do you feel that there are or that there could be mitigating circumstances?
A. I wouldn't say that there could not be but
I have not yet heard of any that would sway my opinion on that. But I won't
say that there are not any mitigating circumstances that could not exist.
I have yet to hear them though.
Questions by the prosecution:
Q. Will you listen to all the evidence presented if sentencing becomes a factor in this case before making your decision whether you want to award a BCD or not?
A. Yes. But to clarify BCD or dishonorable.
I am necessarily set on a bad-conduct discharge. But as I stated, I will
listen to all the evidence and witnesses and all the circumstances, however,
before I make my decision.
Questions by the defense:
Q. Just to clarify again, getting back to this question in regards to mandatory discharge from the service if you were to find a person guilty. If you were to find a guilty verdict here today, would you feel that you must necessarily discharge the defendant from the Navy?
A. I will answer that yes with the qualification that I have -- As I stated earlier, I have yet to hear of any circumstances that would lead me to reconsider my position on that. Not to say that they don't exist, you know. My position is that there is a possibility that something could happen or be some set of circumstances that might change my opinion on that but as of yet I have not either heard or experienced that. And as a result, I feel that anybody who is convicted in the naval service of distributing or selling illegal substances in my opinion you should be dishonorably discharged or discharged with a bad-conduct discharge.
Trial defense counsel used his one peremptory challenge against LT J. Trial defense counsel then preserved the issue by noting on the record that he would have used his peremptory challenge for another member if the challenge for cause against LT J had been granted. See RCM 912(f)(4), Manual for Courts-Martial, United States (1995 ed.).
Appellant asserts that the military judgeís denial of defense counselís challenge for cause against LT J was improper under RCM 912(f)(1)(N), which provides a cause for challenge "in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality." The Discussion following this catch-all provision lists examples of circumstances which would trigger it, including where a potential member "has an inelastic opinion concerning an appropriate sentence for the offenses charged."
Appellant relies on LT Jís statement during voir dire that that any distribution of drugs warranted a punitive discharge. Appellant further contends that any statements made by LT J during voir dire to the contrary were only "pro forma and parroting responses to leading questions asked by the military judge and trial counsel." Final Brief at 5.
The Government notes that the standard of review is whether there was a "clear abuse of discretion" and emphasizes that appellate courts tend to give great deference to military judges because of their ability to observe the memberís demeanor during voir dire. Answer to Final Brief at 2-3. The Government further argues that a potential member is not automatically disqualified for his candor and that the true test is "whether the memberís personal bias is such that it will not yield to the evidence presented and the judgeís instructions." Id. at 3-4, citing United States v. McLaren, 38 MJ 112, 118 (CMA 1993), cert. denied, 510 U.S. 1112 (1994); United States v. Reynolds, 23 MJ 292, 294 (CMA 1987). The Government contends that LT J rehabilitated himself in voir dire and satisfied this true test.
This Court has clearly and repeatedly stated the standard for a challenge for cause is the following: "[M]ilitary judges must follow the liberal-grant mandate in ruling on challenges for cause, but we will not overturn the military judgeís determination not to grant a challenge except for a clear abuse of discretion in applying the liberal-grant mandate." United States v. White, 36 MJ 284, 287 (CMA 1993); see McLaren, 38 MJ at 118 ("At the same time, we have recognized the military judgeís superior position in evaluating the demeanor of court members; therefore, we have granted great deference on appeal to, and will not reverse, a ruling on a challenge for cause absent a clear abuse of discretion.").
This Court has recognized that "a court memberís response to Ďartful, sometimes ambiguous, inquiries from counselí does not require that the military judge grant a challenge for cause. United States v. Bannwarth, 36 MJ 265, 267 (CMA 1993), quoting United States v. Tippit, 9 MJ 106, 108 (CMA 1980). "[A]n unfavorable inclination toward an offense is not automatically disqualifying." Bannwarth, 36 MJ at 268, citing Reynolds, supra, and United States v. Cosgrove, 1 MJ 199 (CMA 1975). "The burden of establishing that grounds for a challenge exist is upon the party making the challenge." RCM 912(f)(3).
We hold that the military judge clearly abused his discretion in denying the challenge, because LT J clearly demonstrated an actual bias by his inelastic attitude toward sentencing. Although he indicated that he could consider the evidence and the circumstances of the case, LT J repeatedly stated that he believed a bad-conduct discharge or a dishonorable discharge was necessary for any servicemember who distributed drugs, and he had not heard of or experienced any circumstances where a punitive discharge would not be appropriate. Trial counselís attempts at rehabilitation were stymied by LT J who consistently reasserted his belief that all drug dealers in the military should receive a punitive discharge. Thus, denial of the defense challenge for cause against LT J was an abuse of discretion.
Chief Judge COX and Judges GIERKE and EFFRON concur.
SULLIVAN, Judge (dissenting):
The critical question before the trial judge
was whether Lieutenant Jones had an inelastic attitude towards sentencing.
See RCM 912(f)(1)(N) Discussion, Manual for Court-Martial, United
States (1994 ed.).1 Thus, this is a question
of actual bias. See United States v. McLaren, 38 MJ 112,
118 (CMA 1993); United States v. Bannwarth, 36 MJ 265 (CMA 1993);
United States v. Reynolds, 23 MJ 292 (CMA 1987); United States
v. Davenport, 17 MJ 242 (CMA 1984). The use of the "clearly demonstrated"
standard in actual bias cases overturns our past precedent without stating
any reason for overturning our prior standard of due deference to the trial
judge who observed the juror. Cf. United States v. Lavender,
46 MJ 485 (1997); United States v. Minyard, 46 MJ 229 (1997). On
appeal, we are looking at the cold record. At trial, the judge was looking
at a warm-blooded juror and hearing the tone and sincerity of the answers
to the voir dire questions. I would defer to the judgment of the
trial judge in this case. Therefore, I dissent.
1 Appellantís court-martial was tried on September 23, 1994.