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Tim Bilecki

About Implied Bias

In United States v. Bagstad, 68 M.J. 460 (C.A.A.F. 2010) the accused was tried at special court-martial by a threemember panel composed of one Marine captain (Capt O-3), one first sergeant (1stSgt E-8), and one gunnery sergeant (GySgt E-7). The Capt was the GySgt’s rater, so the rater and ratee could form the necessary two-thirds (⅔) to convict and sentence the accused.

On appeal, the defense argued that such a voting block required that the Capt be excused under an implied bias theory; the defense relied on United States v. Wiesen, 56 M.J. 172 (C.A.A.F. 2001), in which the CAAF reversed for implied bias because the panel president rated six other members, creating a block that could constitute the two-thirds (⅔) necessary to convict. In a 3-2 decision, the CAAF held the two-thirds voting block challenge had not been properly preserved because defense counsel only raised the challenge when there were four members, so the voting block at that time would have merely been a one-half (½) block. Because the two-thirds voting block only materialized after peremptory challenges were used, the defense effectively waived the Wiesen challenge by not re-challenging the member.

The court held that a challenge for cause is a contextual judgment that is determined through the totality of the factual circumstances.” In this case, the defense challenge was made when only one-half of the members were in the same rating chain. At the time the challenge was made, “the military judge’s denial of the challenge for cause was in accord with this Court’s precedent that a member need not be dismissed solely on the basis of a ratings relationship with another member.”

In this context, the CAAF concluded that panel composition “viewed through the eyes of the public” did not “create doubt as to the fairness” of the court-martial. In finding that that Wiesen was in applicable, the CAAF noted that “at the time” of the accused’s causal challenge, “only half of the panel was involved in any senior-subordinate relationship” as the peremptory had not been exercised. The defense did not object under Wiesen when the panel’s composition included a two-thirds rating block, so the CAAF narrowly reviewed the challenge “from the perspective of when [the accused] objected and the military judge pronounced his ruling, not with hindsight and knowledge of the final composition of the panel.”

Despite the N-MCCA’s effort to characterize the “contextual” facts as different from Wiesen, the cases are virtually identical in terms of the public’s perception of a panel voting block (of raters and rates) that has the two-thirds to convict and sentence the accused. The CAAF opinion, while affirming N-MCCA, does not adopt the lower court’s rationale and seems to rely on a quasi-waiver analysis.

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