United States v. White

SULLIVAN, Chief Judge

(concurring):

I agree with Judge Gierke’s opinion in this case. The pertinent question before this Court and the Court of Military Review is whether the military judge clearly abused his discretion in applying “the President’s” policy favoring grants of challenges for cause at courts-martial. See United States v. Jobson, 31 MJ 117, 122 (CMA 1990) (Sullivan, C.J., concurring); United States v. Nigro, 28 MJ 415, 417 (CMA 1989); United States v. Smart, 21 MJ 15, 19 (CMA 1985).

The standard of clear abuse of discretion is appropriate in most cases whether the challenge is for actual bias or implied bias. See United States v. Polan, 970 F.2d 1280, 1284 (3d Cir.), cert. denied (Feb. 22, 1993); United States v. Hinojosa, 958 F.2d 624, 631 (5th Cir.1992); United States v. Gordon, 812 F.2d 965, 970 (5th Cir.), cert. denied, 483 U.S. 1009, 107 S.Ct. 3238, 97 L.Ed.2d 743 (1987). However, where the basis of the challenge is implied bias under RCM 912(f)(1)(N), Manual for Courts-Martial, United States, 1984, it would constitute a clear abuse of discretion to deny it solely on the basis of a military judge’s credibility determination because implied bias is judged by an objective standard. See United States v. Glenn, 25 MJ 278, 279-80 (CMA 1987); United States v. Miller, 19 MJ 159, 164 (CMA 1985); United States v. Rosser, 6 MJ 267, 272-73 (CMA 1979); Marsch v. Commonwealth, 743 S.W.2d 830, 833-34 (Ky.1987). See generally Smith v. Phillips, 455 U.S. 209, 221, 102 S.Ct. 940, 948, 71 L.Ed.2d 78 (1982) (O’Con-nor, J., concurring).

The military judge ruled on trial defense counsel’s challenges for cause as follows:

MJ: Defense, do you have any challenges for cause?
DC: Yes, sir. At this time, we challenge Major Santana for cause for two reasons. One, he is the reporting senior for Gunnery Sergeant Simmons; and, secondly, part of his billet as the Public Affairs Officer, is to keep the District Director informed of current developments, which include fraudulent enlistments. I believe, if I understood the Major correctly, he got it that the District Director was concerned about the fraudulent enlistment problem— Therefore, he has a continuing interest in fraudulent enlistment— and, as such, sir, an interest in the outcome of this case, sir.
MJ: The challenge for cause is denied against Major Santana. Everything that I heard from him indicates that he can be a fair and.impartial member of the panel.

Any further challenges for cause?

*289DC: Yes, sir. We would challenge Captain Olsen for cause on the basis that he has an intimate knowledge of how a recruiter works, quality control; and he has been schooled in those areas and would bring his expertise, the Defense believes, to the outcome of this court; and, as such, would have an unfair advantage over the other members; and, he might possibly influence their decision making, sir.
MJ: The challenge for cause against Captain Olsen is denied. He indicated right there on the record, when I brought to his attention that he could not use his expertise to influence the other members, that he would not do so.

Any further challenges for cause?

DC: Yes, sir. We would challenge Master Sergeant Scott in that Defense Counsel personally observed him having lunch with a Government witness; and, that he has admitted that they share a mutual interest in Boy Scouts; and, that he has had on occasions spoken to Captain Sinnott, on numerous occasions—
MJ: Your challenge for cause against Master Sergeant Scott is denied. He indicated that he would be able to, that basically his information or interaction was very limited; and, that he would give the same weight and credence to his testimony as anybody else’s.

Any further challenges for cause?

DC: No further challenges for cause, sir.

In the present case, appellant did not make clear whether he was challenging these members because of actual bias or implied bias. Accordingly, I find no clear abuse of discretion on the judge’s part in denying these challenges on the basis of his belief in the members’ disclaimers.