Mark L. MINYARD, Airman
U.S. Air Force, Appellant
Crim. App. No. 31461
United States Court of Appeals for the Armed Forces
Argued January 9, 1997
Decided June 24, 1997
For Appellant: Captain W. Craig Mullen (argued); Colonel David W. Madsen (on brief); Colonel Jay L. Cohen and Lieutenant Colonel Kim L. Sheffield.
For Appellee: Captain Mitchel Neurock (argued); Colonel Theodore J. Fink, Lieutenant Colonel Michael J. Breslin, and Captain Deborah M. Carr (on brief); Lieutenant Colonel Robert E. Williams, Jr. (USAFR).
Military Judge: Charles W. Hasskamp
Tried at Travis Air Force Base, California
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
A general court-martial composed of officer members convicted appellant, contrary to his pleas, of stealing U.S. currency of a value greater than $100.00 (7 specifications) and wrongfully appropriating an American Express card, in violation of Article 121, Uniform Code of Military Justice, 10 USC §921. The adjudged and approved sentence provides for a bad-conduct discharge, confinement for 60 days, partial forfeitures for 2 months, and reduction to the lowest enlisted grade. The Court of Criminal Appeals affirmed the findings and sentence in an unpublished opinion.
We granted review of the following issue:
During voir dire, Maj B stated that she and her husband "don’t discuss cases." She initially said that she had not heard her husband "make any references at all to this case." When asked, however, if she had "heard him make any references at all that could be applied to this case," she answered, "Yes." Asked to elaborate, she testified:
The record before us is unambiguous. Contrary to the assertion of our dissenting colleague that "there is no evidence in the record that . . . [Special Agent B] was involved with appellant’s case," ___ MJ at (8), counsel for both sides agreed, on the record, that Special Agent B was an assistant case agent in the investigation of the charges before the court-martial.
RCM 912 (f)(1)(N), Manual for Courts-Martial, United States (1995 ed.), codifies a general ground for challenge applicable when a member "[s]hould not sit as a member in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality." We have said that "[t]his general ground includes actual bias as well as ‘implied bias.’" United States v. Daulton, 45 MJ 212, 217 (1996), citing United States v. Harris, 13 MJ 288, 292 (CMA 1982). "The focus of the rule is on the perception or appearance of fairness." United States v. Dale, 42 MJ 384, 386 (1995). The rule "reflects the President’s concern with avoiding even the perception of bias, predisposition, or partiality." United States v. Lake, 36 MJ 317, 323 (CMA 1993).
The issue in this case involves implied bias rather than actual bias. Although our standard of review is abuse of discretion for challenges based on actual bias as well as those based on implied bias, we give less deference to the military judge when implied bias is involved. See generally United States v. White, 36 MJ 284 (1993).
"A challenge for cause based on actual bias is ‘essentially one of credibility.’" Because of the military judge’s superior "opportunity to observe the demeanor of court members and assess their credibility during voir dire," a military judge’s ruling on a challenge based on actual bias is given "great deference." United States v. Daulton, 45 MJ at 217. "Implied bias," on the other hand, "is reviewed under an objective standard . . . . Implied bias is not viewed through the eyes of the military judge or the court members, but through the eyes of the public." Id. at 217. "[T]he military judge’s assessment of . . . credibility . . . is not dispositive on the issue of implied bias." Id. at 218.
We hold that the military judge abused his discretion in denying the challenge of Maj B. Under an objective standard, there is a "substantial doubt" about the "legality, fairness, and impartiality" of a court-martial when a court member sits in judgment of a case investigated by her husband. Like the participation of the security police officer in Dale and the participation of the member whose sister and mother were victims of sexual abuse in Daulton, Maj B’s participation in a case investigated by her husband does not pass the test of public confidence contemplated by RCM 912(f)(1)(N). See RCM 912(f), Discussion (example of basis for challenge is that "the member . . . is closely related to . . . a witness in the case"); see also United States v. Glenn, 25 MJ 278, 280 (CMA 1987) ("We find it difficult to believe that either appellant or the public could be convinced that he received a fair trial when he was not apprised of the fact that a member of the staff judge advocate’s family was sitting on his court-martial.").
Contrary to our dissenting colleague’s assertions, this decision is not a reflection on Maj B’s integrity, "a rejection of rehabilitation of potential court members," ___ MJ at (1), or a holding that law enforcement personnel and their spouses are per se ineligible to sit as court members. We do not suggest that Maj B’s responses on voir dire were anything but completely honest and sincere. We are not holding that law enforcement personnel and their spouses are per se disqualified from sitting on courts-martial.
This case is not based on Maj B’s relationship with a person who happens to be in law enforcement. It is based on her relationship to a criminal investigator who investigated the charges in the specific case before her. We hold only that Maj B’s participation in a case investigated by her husband would cause a reasonable member of the public to have "substantial doubt as to legality, fairness, and impartiality" of the proceedings. RCM 912(f)(1)(N).
The decision of the United States Air Force Court of Criminal Appeals is reversed. The findings and sentence are set aside. The record of trial is returned to the Judge Advocate General of the Air Force. A rehearing may be ordered.
Judges SULLIVAN and EFFRON concur.
Cox, Chief Judge (concurring):
I write only because of the doomful, apocalyptic dissent of my learned colleague. This case is simple. The wife of a policeman who investigated the case was allowed to sit in judgment of the man her husband accused of committing the crime. I would allow neither the fox nor the vixen to guard the hen house.
With all due respect, we are not talking abstractly about a policeman or a policeman's wife. We are talking about "the" policeman and “ his” wife. See RCM 912 (f)(1)(N), Manual for Courts-Martial, United States (1995 ed.).
CRAWFORD, Judge (dissenting):
Despite their assertion to the contrary, the majority's decision is either a reflection on the integrity of the court member or a rejection of rehabilitation of potential court members. Neither is appropriate. Additionally, it misapplies our "clear-abuse-of-discretion" standard of review, United States v. White, 36 MJ 284, 287 (CMA 1993). For these reasons I dissent.
This case is similar to others we have seen. See, e.g., United States v. Roane, 43 MJ 93 (1995) (accused used roommate's telephone jack); United States v. Reed, 34 MJ 282 (CMA 1992) (accused used roommate's ATM card). The issue is whether appellant had permission to use his friend's American Express card for charges totaling nearly $5,000. No law enforcement officers testified in this case either at trial or at the investigation under Article 32, Uniform Code of Military Justice, 10 USC § 832. Appellant's friend, Airman First Class John R. DiRoma, Jr., testified, along with an auditor from American Express, for the Government. The only witness for the defense was appellant. The issue centered around appellant's belief that he could lawfully take and use his friend's ATM card.
The court members were placed under oath for the voir dire. During the voir dire of the court members, it was learned that Lieutenant Colonel (LtCol) B was previously an area defense counsel, while Major (Maj) B was married to an OSI agent.
Maj B testified on voir dire as follows:
MEMB MAJ [B]: No. I had no idea. We don't discuss cases. If he ever gave me any information at all - if he ever did - I would want to know more. So, I just don't want to know. We don't discuss any cases.
TC: Have you heard him make any references at all to this case?
TC: Let me ask you an even more specific question. Have you heard him make any references at all that could be applied to this case?
MEMB MAJ [B]: Yes.
TC: If I could ask, what references would those be?
TC: Did he say anything about that case?
TC: So you have a standing rule in your house not to discuss cases?
MEMB MAJ [B]: Yes.
MEMB MAJ [B]: No. I mean since he has worked in OSI, it has always been his work and mine has been mine. I don't really get involved with what he does.
The judge later questioned Maj B, as follows:
MEMB MAJ [B]: Absolutely not.
MJ: Or his professional association with OSI?
MEMB MAJ [B]: No, sir.
MEMB MAJ [B]: No, sir.
MJ: And you have not formed any opinions in regards to the charge and specifications in this case based on your husband's professional occupation with the Air Force?
During argument on the challenge for cause against Maj B, defense counsel stated:
The prosecutor argued the following: