UNITED STATES, Appellee

                                        v.

                        Robert J. WIESEN, Sergeant
                           U.S. Army, Appellant


                                No. 01-0134/AR

                          Crim. App. No.       9801770

________________________________________________________________

       United States Court of Appeals for the Armed Forces

                       Argued May 22, 2001

                       Decided December 13, 2001

BAKER, J., delivered the opinion of the Court, in which GIERKE
and EFFRON, JJ., joined. CRAWFORD, C.J., and SULLIVAN, S.J.,
each filed a dissenting opinion.


                                    Counsel

For Appellant: Captain Sean S. Park (argued); Colonel Adele H.
Odegard, Lieutenant Colonel David A. Mayfield, and Major
Jonathan F. Potter (on brief).

For Appellee: Captain Karen J. Borgerding (argued); Colonel
David L. Hayden Lieutenant Colonel Edith M. Rob and Major
Anthony P. Nicastro (on brief).


Military Judge:     Kenneth D. Pangburn

     THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Wiesen, No. 01-0134/AR


     Judge BAKER delivered the opinion of the Court.

     A general court-martial composed of officer and enlisted

members convicted appellant, contrary to his pleas, of two

specifications of attempted forcible sodomy with a child,

indecent acts with a child, and obstruction of justice, in

violation of Articles 80 and 134, Uniform Code of Military

Justice (UCMJ), 10 USC §§ 880 and 934, respectively.    He was

sentenced to a dishonorable discharge, confinement for twenty

years, total forfeitures, and reduction to grade E-1.      The

convening authority approved the findings and sentence as

adjudged.    The court below set aside the finding of guilty of

obstruction of justice, dismissed that specification, affirmed

the remaining findings, and upon reassessment, affirmed the

sentence.

     This Court granted review of the following issue:

            WHETHER THE MILITARY JUDGE ABUSED HIS
            DISCRETION BY VIOLATING THE MANDATE TO GRANT
            CHALLENGES FOR CAUSE LIBERALLY WHEN HE
            WRONGLY DENIED THE DEFENSE’S CHALLENGE FOR
            CAUSE AGAINST A PANEL MEMBER WHO WAS THE
            SUPERVISOR/RATER FOR SIX OTHER MEMBERS OF
            THE PANEL.

For the reasons set forth, we find that the military judge

abused his discretion when he denied the challenge for cause

against Colonel (COL) Williams.    Thus, we reverse.




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United States v. Wiesen, No. 01-0134/AR


                            Background

     At trial, appellant elected to be tried by a panel of both

officer and enlisted members.   Ten members reported to the

court-martial.   COL Williams, a brigade commander, was the

senior member.

     During the military judge’s preliminary voir dire of the

members, the following information was revealed:

     MJ: Is any panel member in the rating chain,
     supervisory chain, or chain of command of any other
     panel member? If so, raise your hand.

     Colonel Williams, who’s under your command or rating
     chain?

     MEM [COL WILLIAMS]: [Lieutenant] Colonel Mereness is
     a battalion commander for me, [Lieutenant] Colonel
     Rogers is a battalion commander for me, Major
     Gonsalves is a battalion XO [executive officer] for
     me. [Lieutenant] Colonel Hough is my forward support
     battalion commander and the first sergeant down there
     at the end is also in my chain.

     MJ:   First Sergeant Waters.       Who else?

     MEM [COL WILLIAMS]: Command Sergeant Major Arroyo
     also is in my BCT [Brigade].

     Civilian defense counsel attempted to exercise a

challenge for cause to remove COL Williams, based on

implied bias, because of his supervisory position over six

of the panel members.   After questioning the members, the

military judge denied the challenge for cause, stating:

     MJ: Well, if this were some sort of military offense
     that occurred in the 2nd Brigade [COL Williams’s
     Brigade], I might look at it differently. But for a


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United States v. Wiesen, No. 01-0134/AR


     case of this type, I think the panel members can each
     approach this with an individual voice and
     consideration. They’ve all indicated that they could
     express their opinions’ freely and openly and that
     they would not be inhibited or unduly influenced by
     any superior.

             Your challenge for cause is denied.

         Defense counsel subsequently exercised his peremptory

challenge against COL Williams and stated that, but for the

military judge’s denial of his challenge for cause against

COL Williams, he would have peremptorily challenged Major

Gonsalves.

                                Discussion

                          Testing Impartiality

     As a matter of due process, an accused has a constitutional

right, as well as a regulatory right, to a fair and impartial

panel.     United States v. Mack, 

, 54 (CMA 1994); see RCM

912(f)(1)(N), Manual for Courts-Martial, United States (2000

ed.).1    Indeed, “[i]mpartial court-members are a sine qua non for

a fair court-martial.”      United States v. Modesto, 

, 318

(1995).     That is not to say that an accused has a right to the

panel of his choice, just to a fair and impartial panel.             

and common law incorporate a number of methods to




1This Manual provision is identical to the one in effect at the time of
appellant’s court-martial.


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United States v. Wiesen, No. 01-0134/AR


validate this right, including voir dire, the challenge for

cause, and the peremptory challenge.

     In this case, appellant takes issue with the judge’s

application of, or to be more precise, his failure to apply his

authority to remove a potential member for cause.    RCM

912(f)(1)(N) provides that “[a] member shall be excused for

cause whenever it appears that the 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.”   In furtherance of this principle, this Court has

determined that a member shall be excused in cases of actual

bias or implied bias.   United States v. Napoleon, 

,

282-83 (1997); United States v. Minyard, 

, 231 (1997);

United States v. Daulton, 

, 217 (1996); United States

v. Harris, 

, 292 (CMA 1982).    Further, “we have urged a

‘liberal’ view on granting challenges for cause.”    United States

v. Dale, 

, 386 (1995).   Thus, “[m]ilitary judges must

follow the liberal-grant mandate in ruling on challenges for

cause….” 

, quoting United States v. White, 

, 287 (CMA 1993).

     “The test for actual bias is whether any bias ‘is such that

it will not yield to the evidence presented and the judge’s

instructions.’” 

, quoting United States v.

Reynolds, 

, 294 (CMA 1987).    “While actual bias is


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United States v. Wiesen, No. 01-0134/AR


reviewed through the eyes of the military judge or the court

members, implied bias is reviewed under an objective standard,

viewed through the eyes of the public.” Id., quoting 

.   The focus “is on the perception or appearance of

fairness of the military justice system.”   

.

At the same time, this Court has suggested that the test for

implied bias also carries with it an element of actual bias.

Thus, there is implied bias when “most people in the same

position would be prejudiced.”   United States v. Armstrong, 

, 53-54 (2000), quoting United States v. Warden, 

,

81 (1999);   United States v. Smart, 

, 20 (CMA 1985).

This Court has also determined that when there is no actual

bias, “implied bias should be invoked rarely.”    United States v.

Rome, 

, 469 (1998).

     Given the factual underpinning for testing actual bias, we

review a military judge’s findings regarding actual bias for an

abuse of discretion.   

.   On the other

hand, issues of implied bias, which entail both factual inquiry

and objective application of legal principle, are reviewed under

a less deferential standard.   

, quoting

.

                           Implied Bias

     In the case at hand, appellant did not, and does not,

challenge the composition of his panel on the grounds of actual


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United States v. Wiesen, No. 01-0134/AR


bias.    These officers and senior enlisted personnel, who swore

to defend the Constitution, stated to a federal judge that they

would not be swayed by the Brigade Commander because he was

their commanding, rating, or supervising officer.           COL Williams

stated that he would not expect any jury room deference given

his position.    Appellant does not challenge the veracity of

these voir dire responses.       Rather, defense counsel challenged

on the grounds of implied bias, citing to this Court’s decision

in Rome.    Thus, in accord with this Court’s precedent on RCM 912

and implied bias, including Rome, Daulton, and Dale, the issue

here is one of public perception and the appearance of fairness

in the military justice system.

     It is well settled that a senior-subordinate/rating

relationship does not per se require disqualification of a panel

member.    

; 

; United States

v. Murphy, 

, 455 (CMA 1988), and 

(CMA),

cert. denied, 

(1989); see 

.2



     2
        Murphy and Harris both involve instances of multiple
superior/subordinate relationships between members. In Murphy, the President
of the court-martial was in the chain of command of two junior members and
may have been required to sign as a rater for them if their senior officer
was not present. Yet another member was the reporting official for one other
member and a “reporting official once removed for a second 

. This Court held that the lower court erred because it established “a
per se rule of disqualification for a senior member of the court-martial who
writes or endorses an efficiency report of a junior member.” 

the President of the court “wrote or endorsed the fitness reports of three
other members of the 

. Furthermore, the President
worked with two of the victims of the appellant’s larcenies and talked about
these larcenies with the victims before the trial. Finally this member, by


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United States v. Wiesen, No. 01-0134/AR


However, beyond that principle, this Court has struggled to

define the scope of implied bias, or perhaps just disagreed on

what that scope should be.       The dissent in Rome argued that this

Court had adopted a Justice Potter Stewart – “I know it when I

see it” – standard when it comes to implied 

.

However, while this Court’s application of implied bias may

evolve with case law, at its core remains a concern with public

perception and the appearance of fairness in the military

justice system.

     In Murphy and Harris, this Court tested the presence of two

and three members on panels that included their rating officers.

In contrast, in this case the President of the panel and his

subordinates comprised the two-thirds majority sufficient to

convict, a factual scenario outside the margin of tolerance

reflected in our case law.       Thus, appellate review of this case

neither requires application of per se principles nor rejection

of Rome’s guidance that implied bias should be invoked rarely.

     Where a panel member has a supervisory position over six of

the other members, and the resulting seven members make up the



virtue of his position, had an official interest in discouraging larcenies
like the ones appellant had committed. This Court held that since the
military judge relied only on the disclaimers made by the challenged member
during voir dire, her decision to deny the challenge for cause was in error
on the question of implied bias. 

challenged member rated three
other members was not the main factor. In his concurring opinion, Judge Cook
noted that “[b]y far the most significant of the allegedly disqualifying
factors cited was [the challenged member’s] professional relationship with
two of the seven theft victims.” 

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United States v. Wiesen, No. 01-0134/AR


two-thirds majority sufficient to convict, we are placing an

intolerable strain on public perception of the military justice

system.   This is a contextual judgment.   The President

anticipated in the preamble to the Manual for Courts-Martial

that judges would need to carefully balance national security

with individual rights in applying the UCMJ.    That preamble

states:   “The purpose of military law is to promote justice, to

assist in maintaining good order and discipline in the armed

forces, to promote efficiency and effectiveness in the military

establishment, and thereby to strengthen the national security

of the United States.”

     What is reasonable and fair from the public’s perception,

as well as this Court’s judgment as to what is reasonable and

fair, would be different in the case of national security

exigency or operational necessity.   In a particular case,

operational needs may impact the availability of members of a

command, thereby significantly limiting the pool from which

potential members might be selected.   Here, deployed units may

have diminished the potential pool of members, but the

Government failed to demonstrate that it was necessary for the

Brigade Commander to serve on this panel.    The record shows that

there were at least two combat brigades at Fort Stewart at the

time of trial, in addition to support elements, from which to

select a qualified member in lieu of COL Williams.


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United States v. Wiesen, No. 01-0134/AR


     In short, in this case, the Government has failed to

demonstrate that operational deployments or needs precluded

other suitable officers from reasonably serving on this panel,

thus necessitating the Brigade Commander’s participation.

     To address this issue from the standpoint of performance

reports misses the point.    With or without the prohibition

against unlawful command influence under Article 37, UCMJ, 10

USC § 837, we reject the notion that officers and non-

commissioned officers, who swear to uphold the Constitution,

might breach that oath willfully in the deliberation room in an

effort to influence a performance report.    The American public

should and does have great confidence in the integrity of the

men and women who serve in uniform, including their integrity in

the jury room.

     However, public perception of the military justice system

may nonetheless be affected by more subtle aspects of military

life.   An objective public might ask to what extent, if any,

does deference (a.k.a. respect) for senior officers come into

play?   The public perceives accurately that military

commissioned and non-commissioned officers are expected to lead,

not just manage; to command, not just direct; and to follow, not

just get out of the way.    For lack of a more precise term,

appellant’s trial defense counsel described this concern as




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United States v. Wiesen, No. 01-0134/AR


creating “the wrong atmosphere.”3         In this context, there is

simply too high a risk that the public will perceive that the

accused received something less than a jury of ten equal

members, although something more than a jury of one.

      We also disagree with the military judge’s suggestion that

he might treat the question of implied bias differently in a

case involving an offense particular to the military justice

system, as opposed to one of child abuse.          Implied bias

undermines public confidence in the military justice system

regardless of the offense.4

      Whether one agrees with appellant that the panel would

constitute a “brigade staff meeting” or not, we have no doubt

that “viewed through the eyes of the public,” serious doubts

about the fairness of the military justice system are raised

when the senior member of the panel and those he commanded or

supervised commanded a two-thirds majority of members that alone

could convict the accused.       This is not “knowing it when you see

it,” or appellate judges attempting to extrapolate “public



3
  Defense counsel stated: “And that’s just an awful lot of people who he
influences. And if you take him off, you don’t have – you kind of break up
that number of superior/subordinate rating chain relationships. . . .It
creates the wrong atmosphere---.” We agree. This is a different case
without the presence of the brigade commander and six of his subordinates.
4
  We do not need to debate for the purpose of this appeal the implication that
there is a qualitative difference between traditional military offenses, like
desertion, and offenses committed by or against military personnel or their
families, such as child abuse. We find it hard to imagine that a commander
would not consider both types of offenses with equal gravity and concern.


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United States v. Wiesen, No. 01-0134/AR


perceptions” from the bench.        This is a clear application of law

to fact, and illustrates well why this court recognizes a

doctrine of implied bias, as well as one of actual bias, in

interpreting RCM 912.

      For these reasons, the military judge abused his discretion

when he failed to grant appellant’s challenge for cause against

COL Williams.5    Having found error, we must now test for

prejudice.

                                 Prejudice

      Appellant preserved this issue for appeal by peremptorily

challenging COL Williams and indicating that, but for the

military judge’s denial of his challenge for cause, he would

have used the peremptory challenge against another officer.

      There is no constitutional right to a peremptory challenge.

Ross v. Oklahoma, 

, 88 (1988); 

.   Therefore, if there is prejudice, its existence derives

from the statutory and regulatory right to one peremptory

challenge provided for in Article 41, UCMJ, 10 USC § 841, and

RCM 912(g).    This Court recently addressed the question of




5
 Senior Judge Sullivan renews his opposition to this Court’s precedent
regarding implied bias as an interpretive framework for applying RCM 912.
Senior Judge Sullivan may disagree with the majority view that where the
President of a panel commands or supervises a two-thirds majority of court
members sufficient to convict, serious doubts about the fairness of military
justice are raised, but that does not make the majority view ultra vires.
The duty of judges is to say what the law is. Marbury v. Madison, 

, 177 (1803).


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United States v. Wiesen, No. 01-0134/AR


prejudice in Armstrong, where the appellant also removed an

issue of implied bias through exercise of his one peremptory

challenge.     In Armstrong, this Court held that the availability

of a peremptory challenge does not remove the prejudice arising

from an erroneous ruling on a challenge for cause.     

     Armstrong remains the law in the military.     When a statute

or rule confers a right greater than the Constitution, an

accused is entitled to the benefit of that greater right, unless

it conflicts with a higher source of law.     

; United States v. Davis, 

, 485-86 (1998).

Accordingly, even though COL Williams was excused from the panel

by a peremptory challenge, the military judge’s denial of the

challenge for cause against COL Williams prejudiced appellant’s

right to exercise a peremptory challenge against another member

of his choice.     To say that appellant cured any error by

exercising his one peremptory challenge against the offending

member is reasoning that, if accepted, would reduce the right to

a peremptory challenge from one of substance to one of illusion

only.

                               Decision

        Based on the foregoing, we hold that the military judge

abused his discretion in denying the challenge for cause against

COL Williams and that such error resulted in prejudice to

appellant.


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United States v. Wiesen, No. 01-0134/AR


     The decision of the United States Army Court of Criminal

Appeals is reversed, and the findings of guilty and sentence are

set aside.   The record of trial is returned to the Judge

Advocate General of the Army.   A new trial may be ordered.




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United States v. Wiesen, No. 01-0134/AR


CRAWFORD, Chief Judge (dissenting):

       After the seven-game 1960 world series victory by my

hometown Pittsburgh Pirates over the heavily favored New York

Yankees, that ended when Bill Mazeroski hit a dramatic ninth

inning home run over Yogi Berra’s head and the left center field

wall of Forbes Field, Yogi explained the loss by saying, “We

made too many wrong mistakes.”1            Unfortunately, our performance

in the arena of implied bias is filled with inconsistency, if

not “wrong mistakes,” and today’s decision only compounds the

confusion.

       It is unclear whether the doctrine of implied bias even

exists as a matter of law.        See Smith v. Phillips, 

(1982); United States v. Dinatale, 

, 329 (1996)(Cox,

C.J., concurring).       The Supreme Court has neither embraced nor

rejected the doctrine.        See, e.g., Andrews v. Collins, 

, 620 (5th Cir. 1994); Tinsley v. Borg, 

, 527 (9th

Cir. 1990); Person v. Miller, 

, 664 (4th Cir. 1988).

If it does exist, a conflict exists among the federal Courts of

Appeals concerning the standard of review and application of the

doctrine.




1
    Yogi Berra, The Yogi Book 34 (1998).
United States v. Wiesen, No. 01-0134/AR


     The majority tests the military judge’s denial of a causal

challenge against Colonel (COL) Williams for abuse of

discretion.   ___ MJ at (12).   We have previously held, on

numerous occasions, that the proper standard of review is “clear

abuse of discretion.”   See, e.g., United States v. White, 

, 287 (CMA 1993), cert. denied, 

(1994);      United

States v. Dinatale, supra at 328; but see United States v.

Warden, 

, 82 (1999)(abuse of discretion); compare United

States v. Cerrato-Reyes, 

, 1260 (10th Cir. 1999)(a

trial court’s finding as to actual bias is reviewed for clear

error, but the court’s finding as to implied bias is reviewed de

novo), with United States v. Ai, 

, 5 n.4 (1998)(declining

to decide a “precise” standard for appellate review of implied

bias challenges).

     All military accused, like their counterparts in civilian

criminal courts, have a right to a trial before an impartial

factfinder.   See Weiss v. United States, 

, 179

(1994); Ai, supra at 4; RCM 912(f)(1), Manual for Courts-

Martial, United States (2000 ed.).    Assuming that the doctrine

of implied bias does exist, other Courts of Appeals have limited

its application to those exceptional and extraordinary

circumstances where a juror’s emotional attachment to an issue

or participant in the court proceeding was such that it was very

unlikely, by any objective measurement, that an average person

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United States v. Wiesen, No. 01-0134/AR


could remain impartial in deciding the merits of the case.     See

United States v. Greer, 

, 53 & n.3 (2d Cir. 2000)

(Juror’s failure to inform the court that he had been approached

by an old acquaintance who was also a friend of the defendant’s,

about “lend[ing] a ‘sympathetic ear,’” as well as this juror’s

inadequate response to a question concerning whether any of his

relatives had been accused of a crime, did not justify a finding

of implied bias.   The juror “was, after all, neither related to

a party nor a victim of the defendants’ crimes.”); United States

v. Polichemi, 

, 863-64 (7th Cir. 2000)(Failure to

excuse a fifteen-year employee of the same U.S. Attorney’s

Office that was prosecuting the case for implied bias was

error.); Fitzgerald v. Greene, 

, 365 (4th Cir.

1998)(Juror answered “No” to a question whether he or any member

of his immediate family had been the victim of a rape, robbery,

or abduction in a murder/rape/robbery trial.   During

deliberations, this juror revealed that his granddaughter had

been molested as a child.   The Court found no implied bias,

since neither the juror nor anyone in his family was personally

connected to any party in the case.).

     See also 

(O’Connor, J.,

concurring); United States v. Gonzalez, 

(9th Cir.

2000)(implied bias found when juror gave equivocal answers about

whether her recent divorce and family breakup -- occasioned by

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United States v. Wiesen, No. 01-0134/AR


her ex-husband’s use of cocaine, the same drug involved in the

trial -- would affect her judgment adversely); Dyer v. Calderon,

(9th Cir. 1998)(in a murder case, implied bias found

when a juror, who had a brother murdered, failed to reveal this

fact during voir dire); Hunley v. Godinez, 

(7th Cir.

1992)(implied bias found when hotel rooms of the jurors, who

were deliberating the defendant’s fate in a murder and burglary

trial, were broken into); Burton v. Johnson, 

(10th

Cir. 1991)(implied bias found when both juror and accused had

been in abusive family situations); United States v. Eubanks,

(9th Cir. 1979)(implied bias found where a juror in

a heroin distribution case had sons who were heroin users and

were serving prison sentences); United States v. Allsup, 

(9th Cir. 1977)(implied bias found in a bank robbery

trial by seating jurors who worked for a different bank which

had been robbed); Jackson v. United States, 

(D.C.

Cir. 1968)(implied bias found in a juror who had been involved

in a love triangle similar to the one at trial); United States

ex rel. De Vita v. McCorkle, 

(3d Cir. 1957)(implied

bias found when a juror was a robbery victim and defendant was

on trial for robbery).




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United States v. Wiesen, No. 01-0134/AR


      Unlike other courts,2 the majority finds that implied bias

is an issue “of public perception and the appearance of fairness

in the military justice system,” ___ MJ at (7), not one of

individual court member disqualification based on that member’s

bias.   The majority finds reversible error in the composition of

the court-martial panel because COL Williams’s presence erodes

public confidence in the “legality, fairness, and impartiality”

of the military justice system.        See RCM 912(f)(1)(N).       Since I

have a bit more confidence in the judgment of the American

public than does the majority, I find no clear abuse of

discretion in the military judge’s denial of the causal

challenge.




2
   The origin of “implied bias” in this Court can be traced to Judge
Fletcher’s individual opinion in United States v. Harris, 

, 292 (CMA
1982). See United States v. Daulton, 

, 217 (1996). Implied bias
was not a new concept. In United States v. Wood, 

, 133 (1936),
the Supreme Court held that “[t]he bias of a prospective juror may be actual
or implied; that is, it may be bias in fact or bias conclusively presumed as
a matter of law.” In support of his implied bias argument, Judge Fletcher
relied on United States v. Deain, 5 USCMA 44, 17 CMR 44 (1954), and Irvin v.
Dowd, 

(1961). These two cases reinforced the basic criminal law
concept that an accused is entitled to be judged by one who is impartial,
that is, one who has an open mind and is fair.

      In the two decades that this Court has wrestled with the doctrine of
implied bias, the focus of this Court has shifted from examining whether an
average person, sitting in the position of the court member in controversy,
would be fair and open-minded, to a concern about the impartiality of our
military judicial system in the eyes of the public at large. Justice
O’Connor’s admonition in Smith v. Phillips, 

, 222 (1982)
(O’Connor, J., concurring), that implied bias be reserved for only the most
exceptional circumstances seems to have been forgotten, or like some
unfortunate aspects of our society, what used to be the exception has now
become routine. See United States v. Smart, 

(CMA 1985); United
States v. Glenn, 

, 280 (CMA 1987); United States v. Napoleon, 

, 283 (1997); United States v. Warden, 

, 81 (1999); United States
v. Armstrong, 

, 53-54 (2000).
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United States v. Wiesen, No. 01-0134/AR


      The American public with which I am familiar is both

perceptive and informed.       When presented with all the facts, it

is most capable of making a fair and reasoned judgement.             It is

not limited to a handful of individuals dedicated either to

vilifying or lionizing the role of a convening authority in the

selection of court-martial members.         The informed public

understands the differences between courts-martial with members

and trials in the civilian sector with civilian jurors.

American citizens are also capable of understanding the

differences between the military justice system and the various

civilian criminal law systems, and knowing that in the military

justice system, a convening authority selects court-martial

members “by reason of age, education, training, experience,

length of service, and judicial temperament.”           Art. 25(d)(2),

UCMJ, 10 USC § 825(d)(2).3       The public can also understand why


3
   The convening authority, normally a senior commander in a chain-of-command,
has always occupied a prominent role in military justice. After World War
II, in response to numerous complaints of perceived injustices, there were a
number of investigating committees. Many of the organizations investigating
the state of military justice, to include the American Bar Association’s
Vanderbilt Committee, the American Legion, and the Veterans of Foreign Wars,
advocated curtailing, if not removing, the convening authority from his
central role in the court-martial process. The Secretary of War rejected
changes that precluded a commander from appointing and reviewing courts-
martial. See Gerald F. Crump, Part II: A History of the Structure of
Military Justice in the United States, 1921-1966, 17 Air Force L. Rev. 55,
58-60 (1975); 1 Francis A. Gilligan & Fredric I. Lederer, Court-Martial
Procedure §§ 1-44.00 & 1-45.00 at 14-16 (2d ed. 1999).

      Passage of the National Security Act of 1947 and the creation of the
Department of Defense brought forth new legislation to make military justice
uniform among all the services. Although the Elston Bill made many reforms
in the military justice arena, “Congress acquiesced in the Army’s
unwillingness to surrender the commander’s control of court-martial
processing, but it made coercion of the court a criminal offense. The
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United States v. Wiesen, No. 01-0134/AR


court-martial members have been referred to as blue ribbon

panels due to the quality of their membership.          See United

States v. Youngblood, 

, 346 (1997)(Crawford, J.,

dissenting); United States v. Rome, 

, 471

(1998)(Crawford, J., dissenting).




drafters felt that this provision, coupled with the broadening of review and
establishment of an independent Judge Advocate General’s Corps, was a
sufficient check on the commander’s abuse of his powers.” Crump, supra at 63
(footnotes omitted). Like most legislation, the Uniform Code of Military
Justice represented a compromise, designed to ensure fairness in courts-
martial proceedings. In particular, commanders still convened and reviewed
courts-martial, but did so under exacting guidelines in such areas as legal
advice, court-martial member selection, and a prohibition against unlawful
command influence.

      Military justice has not been static, as it perhaps was in the middle
of the Twentieth Century. Congress recently ordered a study on the selection
of court-martial members. See Strom Thurmond National Defense Authorization
Act for Fiscal Year 1999, Pub. L. No. 105-261, § 552, 112 Stat. 1920, 2023
(1998). After reexamining the role of the convening authority in the
selection of court members and the exploration of alternatives, the
Department of Defense Joint Service Committee on Military Justice concluded
that the current system of selecting and detailing court-martial members
“best applies the criteria in Article 25(d), UCMJ, in a fair and efficient
manner,” and “[t]he role of the convening authority in the court member
selection process should not be changed.” Report on the Method of Selection
of Members of the Armed Forces to Serve on Courts-Martial 46-47
(1999)(hereinafter DoD Report).

      Military justice can and should be a dynamic process, where
introspection and reexamination take place. Cf. Report of the Commission on
the 50th Anniversary of the Uniform Code of Military Justice (2001). It
would appear, as my colleague Judge Effron recently opined, that “Congress
... has been sensitive to the need for fairness in military justice
proceedings. In Article 25, Congress has provided members of the armed
forces with a valuable protection by requiring the convening authority
personally to select those members of the armed forces ‘best qualified’ to
serve as court members by reason of judicial temperament and related
statutory criteria.” See United States v. Benedict, 

, 458
(2001)(Effron, J., dissenting).
                                     7
United States v. Wiesen, No. 01-0134/AR


     The thoughtful, conscientious public with which I am

familiar would first want to know the facts before jumping to a

conclusion.   The record of trial establishes the following

facts:

     (1) COL Williams, the 2d Brigade Commander, was a permanent

member of Court-Martial Convening Order Number 4.     Lieutenant

Colonel (LTC) Rogers, one of COL Williams’s battalion

commanders, as well as LTC Rogers’s executive officer (XO),

Major (MAJ) Gonsalves, were also permanent members of Court-

Martial Convening Order Number 4.      Command Sergeant Major (CSM)

Arroyo was also designated as a member by this Court-Martial

Order whenever an accused requested enlisted membership on the

court.

     (2) LTC Mereness and LTC Hough were detailed to appellant’s

court-martial only by Court-Martial Convening Order Number 6.

     (3) LTC Hough was a Forward Support Battalion (FSB)

commander assigned to the Division Support Command.     He had a

command supervisory relationship with COL Williams only when LTC

Hough’s battalion was in direct support of the 2d Brigade, such

as during deployment situations.

     (4) COL Williams only had rating responsibility for three

members -- his two battalion commanders, LTC Rogers and LTC

Mereness, and LTC Rogers’s XO, MAJ Gonsalves.     The record



                                   8
United States v. Wiesen, No. 01-0134/AR


discloses that COL Williams was the reviewer of First Sergeant

Waters’s enlisted efficiency report, but not a rater.

      (5) Appellant challenged three individuals based on implied

bias at trial -- COL Williams, MAJ Gonsalves, and CSM Arroyo.

There is no stated rationale why trial defense counsel

challenged the most senior member of the panel (COL Williams),

but then challenged two subordinates (MAJ Gonsalves and CSM

Arroyo) instead of those members’ superior officers, LTC Rogers

and LTC Hough, respectively.

      (6)   The military judge found that there were two combat

brigades with the 3d Infantry Division stationed at Fort

Stewart, one of which was deployed to Kuwait.           The military

judge also correctly found that the FSB (LTC Hough and CSM

Arroyo) was not a part of the 2d Brigade.4

      Of course, an astute and inquisitive general public would

not be limited to the record of trial when gathering facts to

test the fairness and impartiality of appellant’s court martial.

Inquiring minds would also discover that one of Fort Stewart’s




4
   While I fully agree with the majority’s view that what is “reasonable and
fair from the public’s perception” might differ based on national security
exigencies or military necessity, I totally disagree with the majority’s
shifting the burden to the Government to demonstrate necessity for a
particular member’s service on the panel. ___ MJ at (9). This burden
shifting eviscerates Article 25, as well as the presumption of regularity
associated with the selection of court members by the convening authority.
                                      9
United States v. Wiesen, No. 01-0134/AR


brigades was deployed, shrinking the potential pool from which

the General Court-Martial Convening Authority could select

members.

     Since the informed and reasonable American public

understands the structure of the United States armed forces, to

include the necessity for superior-subordinate relationships,

the public would disagree with the majority when it finds that

COL Williams had a superior-subordinate relationship with six of

the other nine members.   Actually, COL Williams was superior to

all of the other members of the court-martial panel.

Furthermore, the public would understand that the president of

every court-martial is superior in rank to all other members of

the panel.   Since the public will accept the majority

recognizing that the members were, in fact, impartial, and will

know that appellant has not challenged the veracity of any

individual member’s responses to voir dire questions, the

inquiring public could be perplexed by the majority’s logic.

     Finally, I believe that the American public, after reading

the Supreme Court’s views in Weiss v. United States, 

(1994), and looking at the legislative history of Article

37, UCMJ, 10 USC § 837, would have no difficulty with the

various working relationships among the court members who

adjudicated appellant’s court-martial.    However, the American

public might be skeptical of this Court, which accords military

                                10
United States v. Wiesen, No. 01-0134/AR


judges “great deference” on questions of actual bias (because

the trial judge has observed the demeanor of the participants),5

but gives less deference on questions of implied bias,

presumably because we can gauge the perception of the American

public better than a trial judge.6         Perhaps the informed American

public, cognizant of the purpose of military justice, the

history of the Uniform Code of Military Justice, and the

creation of this Court, might ask why we have such limited

confidence in a military judge’s ability to understand and make

reasoned, informed decisions about the impartiality of court-

martial members.

      In sum, the average American would find that since the

first combat brigade at Fort Stewart was deployed to Kuwait at

the time of trial, appellant’s court-martial members were

selected out of elements of the 3d Infantry Division remaining

at Fort Stewart.     After examining all of the underlying evidence

associated with appellant’s court-martial and knowing all the

facts, I believe a reasonable member of the public would find no

unfairness, bias, or other illegality in the selection of those



5
   See United States v. Giles, 

, 63 (1998); United States v. Lavender,

, 488 (1997); United States v. Napoleon, 

, 283 (1997);
United States v. White, 

, 287 (CMA 1993).
6
   We have forgotten our observation in United States v. Smart, 

, 19
(CMA 1985), that “[t]here are few aspects of a jury trial where we would be
less inclined to disturb a trial judge’s exercise of discretion, absent clear
abuse, than in ruling on challenges for cause in the empaneling of a jury.”
(citations omitted); see also United States v. Greer, 

, 53
(2d Cir. 2000).
                                     11
United States v. Wiesen, No. 01-0134/AR


members who heard appellant’s court-martial, or in the denial of

the challenge for cause against COL Williams.

          The fundamental goal of a military court-martial
          member selection system, as in civilian society,
          is to identify and select a panel of court-
          martial members that is competent, fair, and
          impartial. A military system, however, must also
          produce panel members who are available without
          unduly restricting the conduct of the military
          mission or national security.

Department of Defense Joint Service Committee on Military

Justice, Report on the Method of Selection of Members of

the Armed Forces to Serve on Courts-Martial 8 (1999).     This

goal was achieved in this case.    Accordingly, I would

affirm the decision of the Court of Criminal Appeals.




                                  12
United States v. Wiesen, 01-0134/AR



    SULLIVAN, Judge (dissenting):


                       THE MAJORITY’S HOLDING

    The majority effectively holds today that where one officer

commands a significant number of the members of a panel, he may

not sit as a member of that panel if challenged by the defense.

The Congress and the President are the lawmakers for the military

justice system, and they have not made such a rule.   Based on all

the circumstances of this case, I conclude that the military

judge did not abuse his discretion when he refused to grant the

defense challenge to Colonel (COL) Williams.    See United States

v. Ai, 

, 5 (1998).


    In my view, the majority’s holding in this case creates new

law, and it is law which Congress or the President should make,

not the judiciary.   See U.S. Const. Art. I, § 8, cl. 16; Article

36, UCMJ, 10 USC § 836.   Congress could have provided that a

member shall be disqualified if he or she is the military

commander of a significant number of the members of the panel.

See Article 25(d), UCMJ, 10 USC § 825(d) (“No member of an armed

force is eligible to serve as a member of a general or special

court-martial when he is the accuser or a witness for the

prosecution or has acted as investigating officer or as counsel

in the same case.”).   Congress has been aware that, for years,

commanders have sat on panels with their subordinates.   Congress

could have prohibited this situation by law but failed to do so.
United States v. Wiesen, 01-0134/AR


A court should not judicially legislate when Congress, in its

wisdom, does not.


   With respect to judicial rulemaking (the clone of judicial

legislation), the President, acting pursuant to Article 36, UCMJ,

could also have provided that a challenge must be granted where a

member is a brigade commander of a significant number of the

members of a court-martial panel.    RCM 912(f)(1), Manual for

Courts-Martial, United States (1998 ed.), states:


          (f)   Challenges and removal for cause.

                (1) Grounds. A member shall be
          excused for cause whenever it appears that
          the member:

            (A) Is not competent to serve as a
          member under Article 25(a), (b), or (c);

            (B) Has not been properly detailed as a
          member of the court-martial;

            (C) Is an accuser as to any offense
          charged;

            (D) Will be a witness in the court-
          martial;

            (E) Has acted as counsel for any party
          as to any offense charged;

            (F) Has been an investigating officer as
          to any offense charged;

            (G) Has acted in the same case as
          convening authority or as the legal
          officer or staff judge advocate to the
          convening authority;

            (H) Will act in the same case as
          reviewing authority or as the legal



                                 2
United States v. Wiesen, 01-0134/AR


          officer or staff judge advocate to the
          reviewing authority;

            (I) Has forwarded charges in the case
          with a personal recommendation as to
          disposition;

            (J) Upon a rehearing or new or other
          trial of the case, was a member of the
          court-martial which heard the case before;

            (K) Is junior to the accused in grade or
          rank, unless it is established that this
          could not be avoided;

              (L) Is in arrest or confinement;

            (M) Has informed [sic] or expressed a
          definite opinion as to the guilt or
          innocence of the accused as to any offense
          charged;

            (N) Should not sit as a member in the
          interest of having the court-martial free
          from substantial doubt as to legality,
          fairness, and impartiality.


The President could have made a new rule barring commanders of a

significant number of other members of a panel from sitting on a

court-martial, but he did not.    Like judicial legislation, courts

should refrain from judicial rulemaking.    See generally United

States v. Torres, 

, 45 n.8 (2nd Cir. 1997) (noting

that many states have statutes that set forth conduct or status

disqualifying jurors without regard to actual bias).


    Congress has provided that a military accused may make

challenges for cause, and the military judge is to decide these

challenges.    Article 41(a)(1), UCMJ, 10 USC § 841(a)(1).   The

President, pursuant to Article 36, UCMJ, has specifically


                                  3
United States v. Wiesen, 01-0134/AR


delineated circumstances where a challenged member shall be

excused.    As noted above, nowhere is it said that a member shall

be excused because he is the military commander of a significant

number of the members of the panel.    See RCM 912(f)(1)(A)-(N).

Congress passed the UCMJ legislation knowing that this law was

intended to apply to remote bases and posts, as well as to ships

at sea.    Congress did not see fit to disqualify commanders from

sitting on military juries in these circumstances.      Accordingly,

I must reject this Court’s attempt to fashion such a rule to the

contrary.    See generally United States v. Scheffer, 

(1998) (the President, not the Court of Appeals for the Armed

Forces, makes the rules for courts-martial).


    To the extent that the majority relies on RCM 912(f)(1)(N) as

the legal basis or authority for its holding in this case, I also

must disagree.    It generally says:


            A member shall be excused for cause
            whenever it appears that the member . . .

            (N) should not sit as a member in the
            interest of having the court-martial free
            from substantial doubt as to legality,
            fairness, and impartiality.


In my view, RCM 912(f)(1)(N) does not contemplate mandatory

exclusion rules such as that fashioned by the majority in this

case.   See United States v. Greer, 

, 52 (2nd Cir.

2000) (defining inferred bias in terms of facts which permit a

judge to remove a member in the judge’s discretion).     Instead, it


                                  4
United States v. Wiesen, 01-0134/AR


calls for discretionary judgement by the trial judge,   based on

all the circumstances of a particular case.   See United States v.

Smart, 

, 20 (CMA 1985); see also para. 58e, Manual for

Courts-Martial, U.S. Army, 1928 (“appreciable risk of injury to

the substantial rights of an accused, which risk will not be

avoided by a reading of the record”); see also United States v.

Warden, 

, 82 (1999); United States v. 

;

United States v. Minyard, 

, 231-32 (1997).


    My analysis shows that the trial judge did not abuse his

discretion in this case.   The judge exercised his discretion with

no knowledge that this Court would expand the law as the majority

does today.   When the judge made his ruling that is overturned

today by the majority, there was no case law suggesting this

holding.   Interestingly enough, the majority cites no case law as

support for this new extension of the law.


                        Review for Abuse of
                   Discretion by the Trial Judge

    The assigned legal question before us is whether the military

judge abused his discretion when he denied the defense’s

challenge for cause against COL Williams.    Appellant asserts that

the judge clearly did, especially in light of the military
                                                                1
justice system’s “liberal grant policy” for such challenges,

1
  Interestingly, this policy is in sharp contrast with current
practice in the British criminal justice system. In Britain,
attorneys are not allowed to voir dire or cross-examine the
jurors to ferret out possible grounds for bias, as is common in


                                 5
United States v. Wiesen, 01-0134/AR


see United States v. Dinatale, 

, 327-28 (1996), and

certain facts in this case showing “implied bias.”    See United

States v. Daulton, 

, 217 (1996).    Appellant particularly

argues that COL Williams’s role as a brigade commander of a

majority of the panel members created an appearance of unfairness

as to these proceedings. (R. at 166); see generally United States

v. 

(citing catchall challenge provision of RCM

912(f)(1)(N)); see United States v. Dale, 

(1995);

United States v. 

; see also United States v.

.


    Implied bias has been said to exist in military law when,

“regardless of an individual member’s disclaimer of bias, ‘most

people in the same position would be prejudiced [i.e., biased].’”

United States v. Napolitano, 

, 167 (2000) (quoting

United States v. Schlamer, 

, 93 (1999)); cf. United

States v. 

(in federal civilian system,

challenges must be granted on basis of implied bias if court

concludes “an average person in the position of the juror in

controversy would be prejudiced”).    It calls for a judgment by

the military judge on the propriety of a challenged member or

members sitting in a case, through the eyes of the public.

Implied bias focuses on “the perception or appearance of fairness


American criminal trials. As a result, very little is known
about individual jurors, and attorneys rarely have grounds to
support a challenge for cause. See Sean Enright, Reviving the
Challenge for Cause, 139 New Law Journal 9 (1989).


                                6
United States v. Wiesen, 01-0134/AR


of the military justice system,” rather than the actual existence

of bias.    United States v. Napoleon, 

, 283 (1997).


    Appellant complains that the presence of COL Williams on a

panel where so many members were subject to his command

supervision created an appearance of its unfairness.    Appellant

argues “[e]ven with the panel members’ disclaimers, an outside

observer would reasonably perceive the court-martial to be unfair

when COL Williams, a brigade commander, held such an influential

position over a majority of the panel members.    See (R. at 146.);

[United States v.] Youngblood, 47 MJ [338,] 341 [(1997)]; RCM

912(f)(1)(N).    The perception of unfairness,” appellant further

argues, “increases exponentially considering the fact that,

including himself, COL Williams held a commander, supervisor or

rating position over enough panel members (seven of ten) to

convict SGT Wiesen. (R. at 136-7, 146.); see RCM 921(c)(2)(B).”

Final Brief at 7.


    The military judge, however, provided several reasons for his

rejection of the defense challenge for cause against COL

Williams.    First, the judge stated that military case law did not

require him to grant such a challenge simply because a challenged

member had a military supervisory relationship over another panel

member.    Second, the judge asserted that such a relationship,

even with a majority of the members, would not be a significant

factor raising a suspicion of unfairness in a case where that



                                  7
United States v. Wiesen, 01-0134/AR


command’s organizational interests were not directly at issue.

Third, the judge noted that the extensive voir dire of all the

members of the court-martial panel established no other

circumstances suggesting COL Williams should not sit in this case

in the interest of the appearance of fairness.


    In my view, the military judge did not abuse his discretion

in denying the defense challenge for cause for these reasons.

See generally United States v. 

.    He

correctly recognized that a military supervisory relationship

over another member, including writing the subordinate’s fitness

report, does not per se disqualify the supervisor from sitting on

a court-martial panel with his subordinate.    See United States v.

Murphy, 

, 455 (CMA 1988).    On this matter, we have

generally subscribed to Chief Judge Quinn’s view, expressed long

ago in United States v. Deain, 5 USCMA 44, 52, 17 CMR 44, 52

(1954):


          [T]he mere fact that the senior, or other
          member of the court, coincidentally has
          the duty to prepare and submit a fitness
          report on a junior member, in and of
          itself, does not affect the junior’s
          ‘sense of responsibility and individual
          integrity by which men judge men.’ Dennis
          v. United States, 

, 

, 

. So, if, as in the
          hypothetical case cited by the board of
          review, the convening authority designates
          two officers to serve on a court, one of
          whom is the normal reporting senior of the
          other, no reasonable man would believe
          that the senior is put in a position to
          exert undue control over the deliberations


                                8
United States v. Wiesen, 01-0134/AR


           of the other. Their association as court
           members and the submission of a fitness
           report is not incompatible. We seriously
           doubt that either member would give
           thought to the fact that one is charged
           with the responsibility of reporting on
           the general fitness of the other.

(Emphasis added.)


    Moreover, the military judge was also correct in suggesting

that the fact a number of members of the panel were subject to

the military supervision or evaluation of the president of the

court-martial did not per se require disqualification of that

officer.   See United States v. Harris, 

, 292 (CMA 1982);

United States v. Blocker, 

, 286-87 (CMA 1991).

Appellant’s counsel, however, argued at trial that the number in

his case, a clear majority of the panel, created a particular

appearance of unfairness:


           So, if a reporter from the newspaper came
           in and said, “You mean to tell me that
           five of these guys work for the
           President?” I think that a reasonable
           number of the American public who read
           that newspaper would say, “Yeah, right,”
           about the military justice system. And
           that’s why I’m saying in this case, five’s
           a lot.

(R. at 166).


    In my view, attributing such skepticism to the American

people was unwarranted, and the military judge acted properly in

rejecting it.   Cf. Weiss v. United States, 

, 194

(1994) (Ginsburg, J., concurring) (“Today’s decision upholds a


                                 9
United States v. Wiesen, 01-0134/AR


system of military justice notably more sensitive to due process

concerns than the one prevailing through most of our country’s

history . . . .”).    Moreover, the members of the panel in this

case took an oath to “faithfully and impartially try, according

to the evidence, [their] conscience[s], and the laws applicable

to trials by court-martial, the case of the accused . . . .”

at A8-11.    There is no support in this record to

show that there was any likelihood that the panel in this case

would be intimidated by the Brigade Commander into violating this

oath.


    In this regard, I note that in 1968, Congress specifically

amended Article 37, UCMJ, to expressly prohibit the rating or

evaluation of court members on their court-martial duty

performance.   Article 37(b) now states:


          (b) In the preparation of an
          effectiveness, fitness, or efficiency
          report, or any other report or document
          used in whole or in part for the purpose
          of determining whether a member of the
          armed forces is qualified to be advanced,
          in grade, or in determining the assignment
          or transfer of a member of the armed
          forces or in determining whether a member
          of the armed forces should be retained on
          active duty, no person subject to this
          chapter may, in preparing any such report
          (1) consider or evaluate the performance
          of duty of any such member as a member of
          a court-martial[.]


(Emphasis added.)    I believe the American public is well aware of

this bedrock of modern military law and would consider its


                                 10
United States v. Wiesen, 01-0134/AR


statutory protection when forming a judgment as to the appearance

of fairness of appellant’s court-martial panel.    See also Weiss

v. United States, supra at 180-81 (due process evaluated by

Supreme Court in view of Article 37, UCMJ); see generally United

States v. 

(entire context of record to

be considered).


    Finally, I note that the evidence in this case showed brigade

relationships between COL Williams and the other members of the

panel, but that it also showed appellant was not a member of that

brigade.    See United States v. 

.   In addition, as

noted by the military judge below, the record before us does not

directly or indirectly implicate any particular interest of COL

Williams or his brigade in the successful prosecution of this

case.   Cf. United States v. Rome, 

(1998) (military

supervisor member previously accused of unlawful command

influence at prior court-martial by defense counsel).    Finally,

the extensive inquiry of the members by the trial judge did not

disclose any other factual circumstance from which the public

would perceive that unreasonable demands were being placed on the

challenged members in this case by asking them to sit with COL

Williams.   See United States v. 

(Sullivan, J., concurring in part and dissenting in part).


    In closing, today’s holding by the majority effectively bars

commanders from sitting on courts-martial where their subordinate



                                 11
United States v. Wiesen, 01-0134/AR


officers constitute a significant number of the members of the

panel.   Thus, it may preclude courts-martial in small commands or

on ships, where procuring members outside the local chain of

command is not a realistic option.    I do not believe this is the

will of Congress.   See generally Article 5, UCMJ, 10 USC § 805

(the UCMJ applies in territory worldwide).


    Congress and the President, not this Court, should make these

important decisions.   See United States v. 

.   Accordingly, I dissent.




                                 12