Filed: May 20, 2005
Latest Update: Feb. 12, 2020
Summary: Q. Is your relation with Captain Gilbert would that, affect you in any way or the way you evaluate either, sides case the members professional relationship with the trial counsel.voir dire.requested by defense counsel.counsel and certain panel members issue, the accused received a fair trial.
UNITED STATES, Appellee
v.
Paul A. RICHARDSON, Lance Corporal
United States Marine Corps, Appellant
No. 04-0218
Crim. App. No. 200101917
United States Court of Appeals for the Armed Forces
Argued November 9, 2004
Decided May 20, 2005
BAKER, J., delivered the opinion of the Court, in which
GIERKE, C.J., and CRAWFORD, EFFRON, and ERDMANN, JJ., joined.
Counsel
For Appellant: Captain Rolando R. Sanchez, USMC (argued);
Lieutenant Elysia G. Ng, JAGC, USN (on brief).
For Appellee: Lieutenant Guillermo J. Rojas, JAGC, USNR
(argued); Colonel M. E. Finnie, USMC, Commander C. N. Purnell,
JAGC, USN, and Lieutenant Frank L. Gatto, JAGC, USNR (on brief).
Military Judge: J. F. Havranek
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Richardson, No. 04-0218/MC
Judge BAKER delivered the opinion of the Court.
Appellant was tried by a general court-martial composed of
officer members. Contrary to his pleas he was convicted of
possessing 52.4 pounds of marijuana with the intent to
distribute and importing that marijuana into the United States
in violation of Article 112a, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 912a (2002). The adjudged and approved
sentence included a dishonorable discharge, confinement for
eight years, forfeiture of all pay and allowances, and reduction
to the lowest enlisted grade, E-1. Citing United States v.
Tardif, 57 M.J. 219 (C.A.A.F. 2002), the United States Navy-
Marine Corps Court of Criminal Appeals approved the findings,
but granted Appellant four months of confinement relief on the
sentence for unreasonable post-trial delay in the review of his
case. United States v. Richardson, NMCCA 200101917 (N-M. Ct.
Crim. App. Aug 22, 2003) (unpublished).
Background
Appellant challenges the composition of his court-martial
panel on the ground of implied bias.1 In particular, he argues
the military judge erred in not excluding three members for
1
We granted review of the following compound issue:
WHETHER THE LOWER COURT ERRED WHEN IT DETERMINED THAT THE MILITARY
JUDGE DID NOT ABUSE HIS DISCRETION DURING VOIR DIRE BY APPLYING AN
“ACTUAL BIAS” STANDARD TO DENY THE DEFENSE’S THREE “IMPLIED BIAS”
CHALLENGES AND BY PREVENTING THE DEFENSE FROM FULLY DEVELOPING THE
FACTS TO SUPPORT THE CHALLENGES TO MEMBERS WHO WERE OR HAD BEEN TRIAL
COUNSEL’S CLIENTS.
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United States v. Richardson, No. 04-0218/MC
cause who had current or prior professional contacts with the
trial counsel, Captain (Capt) M. P. Gilbert. In support of this
argument, he contends that the military judge incorrectly
applied the standard for actual bias to his challenges for cause
rather than the standard for implied bias. In the alternative,
Appellant argues the military judge erred by refusing to reopen
voir dire to afford defense counsel the opportunity to further
question the challenged members in order to test whether any of
them should be excused on the ground of implied bias.
During voir dire, four of the original ten members
indicated some previous professional contact with the trial
counsel: Lieutenant Colonel (LtCol) K. P. Spillers, a squadron
commanding officer; LtCol P. B. Coz, a group commanding officer
(CO); LtCol S. Heywood, a group operations officer; and Major
(Maj) P. F. Callan, a squadron executive officer (XO). The
following exchange occurred between LtCol Spillers and the
military judge:
Q. How is it that you know Captain Gilbert?
A. He’s the group legal officer. And I’ve communicated
with him for legal advice from time to time.
Q. Is there anything about your knowledge of him that’s
going to cause you to either look at this case either
more favorably or disfavorably . . . than anything
else?
A. No.
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United States v. Richardson, No. 04-0218/MC
Although defense counsel’s voir dire of this member was lengthy,
his questions did not address the member’s prior contact or
relationship with trial counsel.
The military judge’s relevant questions to LtCol Coz were:
Q. You said that you know Captain Gilbert. How is it that
you know him?
A. Captain Gilbert is the -– I’m the CO of PASD and MAG
[Marine Aircraft Group]-39. And I have had some legal
problems that I discussed with Captain Gilbert.
Q. Is your relation with Captain Gilbert -– would that
affect you in any way or the way you evaluate either
side’s case?
A. I don’t believe so, no.
Defense counsel was afforded the opportunity to question this
member as well. However, none of counsel’s questions touched on
the member’s professional relationship with the trial counsel.
The exchange between the military judge and LtCol Heywood
on the issue follows:
Q. You also said, sir that you know Captain Gilbert. How
is it that you know him?
A. Just professional discussions regarding legal matters
when I was the XO of 367, like over the phone a couple
of time [sic].
Q. Is there anything from your relationship or your
knowledge of Captain Gilbert that’s going to cause you
to view the government’s case either more favorably or
less favorably than the defense case?
A. No.
After the military judge’s inquiry, defense counsel was afforded
the opportunity to question the member. Although defense
counsel questioned this member as to several aspects of his
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United States v. Richardson, No. 04-0218/MC
background, he did not inquire into the member’s professional
relationship with the trial counsel.
The relevant portion of the military judge’s inquiry of Maj
Callan, the fourth member to indicate previous professional
contact with the trial counsel, follows:
Q. You said that you know Captain Gilbert. How is it that
you know him?
A. In my capacity as an Executive Officer at the squadron.
I deal mostly –- I’m over the phone with him sometimes
for advice and counsel on some of the legal matters
that we have in the squadron.
Q. Do you think that your relationship with him is going
to effect [sic] the way you would view his case or the
government’s case either whether it would be more
favorably or less favorably than say the defense case?
A. Not at all.
In contrast to the three previous members, when allowed to
question this member, defense counsel explored the member’s
relationship with trial counsel. Portions of the colloquy
between the two follow:
Q. You’re currently the executive officer of a squadron?
A. Yes, sir.
Q. And how long have you been in that special position?
A. A year and a half.
Q. And for how long during that period of time has the
trial counsel been the advisor to your squadron?
. . . .
A. Four to six months at the most.
Q. Okay. In that capacity, he comes to you and to the
Commanding Officer and sometimes to him or to you
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United States v. Richardson, No. 04-0218/MC
depending and he provides you advice regarding cases of
Marines in your unit. Is that correct?
A. In almost all cases it’s us contacting him.
. . . .
Q. But once that [the Request for Legal Services] is sent
down to the Legal Team Echo, where the Captain resides,
he becomes your advisor on these cases?
A. Correct.
Q. And that advice extends depending on the cases or
whether this -– what forum these ought to go to:
Should it go to an Article 32 [UCMJ, 10 U.S.C. § 832
(2000), investigation]? Should it go to a special
[court-martial]? And often times during the course
perhaps having referred it to a special providing
guidance regarding other matters.
A. It goes -- could be matters which we talked, but in my
particular experiences dealing with specifically with
the Captain, they were just interpretation on legal
matters and legal policy, not necessarily or
specifically about types of court-martial -– courts-
martial.
Q. He provides you guidance on pretrial agreements. The
buck ends either at your desk or CO’s desk, but he does
provide you guidance. Is that true?
A. If I asked him at [sic] question, I’m sure he would. I
don’t specifically remember ever asking him a question
about pretrial agreements.
Q. If you had an Article 32, he would perhaps provide you
some advice as to whether the case was won, whether he
thought he could win, whether it would do well at the
general court-martial?
A. It would be speculation on my part about whether he
would provide or could provide –-
Q. You’ve not had one?
A. No.
Q. Okay. You call him up and -- from time to time and
say, I’ve got a case. And I’m a little perplexed by
it. And I’d like to get your cut at it?
A. That would be the nature of it. It’s always general in
nature.
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United States v. Richardson, No. 04-0218/MC
. . . .
Q. How many times a week or a month -- you pick the period
to make it reasonable -– would you say you talk to
Captain Gilbert relating to legal matters?
A. Once a month.
Q. Okay. Is that because you have a few cases?
A. No. Because probably the majority of the communication
is between the legal officer and Captain Gilbert. And
I’ll specifically -– I only call if I have additional
questions or clarification that I require.
. . . .
Q. Has Captain Gilbert been a good legal advisor?
A. Yes, sir.
Q. Would you describe him as a trusted legal advisor?
A. Yes.
Q. Have you had occasion to be in positions in other units
where you’ve had to go out and get legal advice from
someone like Captain Gilbert?
A. No.
At the close of voir dire civilian defense counsel asked to
“briefly recall three of the members” to allow him “to look at
and to expand on . . . the issue with the relationship with the
trial counsel.” In particular, defense counsel stated:
I want to sure [sic] that the evidence is fully developed
under [Rule for Courts-Martial (R.C.M.)] 912(1)(f)(N). . .
. This is a special relationship in which the trial
counsel, in particular, should we have a conviction and we
get on to sentencing, is going to be in the posture of
effectively making a recommendation to persons to whom he
makes recommendations regularly, who presumptively believe
that he is a wise counsel, and who rely on his counsel.
That gives me some pause.
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United States v. Richardson, No. 04-0218/MC
The military judge denied this request stating, “All the members
that have said that they know Captain Gilbert said that they
would not give him any special deference whether for or against
him. I trust them on their word and what they’ve said . . . I
think there’s been enough that’s been brought out.”
Following this ruling, defense counsel challenged a total
of seven members for cause, including the four who had indicated
prior contact or a professional relationship with the trial
counsel. Specifically, he challenged five members on the basis
of implied bias, the four mentioned above and one other because
LtCol Heywood was his reporting senior (Maj D. A. Sobyra). He
challenged the two other members because they were the
commanding officer and the executive officer of the same unit
(LtCol C. W. Hocking and Maj S. B. Frosch). When asked by the
military judge if he wished to be heard on the challenges, trial
counsel made the following remarks with respect to the members
with whom he had had previous professional contact:
Lieutenant Colonel Spillers has been talked to I think on
almost three occasions. On these three occasions, it’s
dealt with a hazing issue and one [JAG Manual
investigation].
Lieutenant Colonel Coz, I think, I’ve talked to him about
three or four times.
Lieutenant Colonel Heywood, I don’t remember ever seeing
that individuals [sic] face, Your Honor, I’m sure if he
says that he talked to me over the telephone I talked to
him.
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United States v. Richardson, No. 04-0218/MC
Major Callan, I’ve heard of him but never met him in
person. I have -– I’m assuming talking to him over the
phone . . . . I typically deal directly with Lieutenant
Colonel Veyna. And for the most extent I deal with the CO
of the MAG which is Colonel Jensen. So my contact with
these individuals is limited, Your Honor. And with that we
would ask that you deny that motion for challenge for cause
on that ground.
After hearing from trial counsel the military judge made the
following ruling:
Now, as to those I denied challenges for cause, it may be
just as easy to explain why I granted the challenges for
cause for the other ones to explain why I did not grant
Lieutenant Colonels Coz, Heywood, Hocking, or Major Callan.
As to Major Sobyra in taking in consideration everything
that he answered to concerning implied bias he has three
family members who’ve all been law enforcement, one [his
brother] specifically is involved at the border and with
law enforcement. Here he has a reporting senior as a
member on the panel as well as the close friend that he’s
had for a number of years and specifically that his brother
was involved as I noted in law enforcement activity that is
directed towards the border.
As to Major Frosch, I considered the fact that he said it
would be a distraction for either he or Lieutenant Colonel
Hocking that they are the CO and XO and that it could be a
distraction from this court-martial if they both remained
on. So in granting him, I denied Lieutenant Colonel
Hocking because that seemed to be the only basis for
Lieutenant Colonel Hocking. So my reasoning is: I granted
to Major Frosch and denied to Lieutenant Colonel Hocking.
Lieutenant Colonel Spillers in considering an implied bias,
I took a number of factors into consideration: His
extensive workings with the JTF-6 [Joint Task Force Six]
for a two year time period. The fact that he currently has
friends that are working in drug interdiction involved in
JTF-6 and then to a very lesser degree his dealings with
the trial counsel, Captain Gilbert.
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United States v. Richardson, No. 04-0218/MC
As for Lieutenant Colonel Coz, I did not find that there
was an implied bias because I did not find such significant
aspects as I did with the other members who I did grant the
challenge for cause.
The same would be true for Lieutenant Colonel Heywood and
for Major Callan. I did not believe that there was an
implied bias that exists in there. And in making that
determination, I specifically relied upon their answers
here in court and they’re [sic] demeanor as I observed it
in their answering. I believe that they said that they
could follow the instructions as I gave them. And they
would not give deference to either side.
After the military judge’s ruling, three of the four members who
originally indicated a prior professional relationship with the
trial counsel remained on the final panel of six members.2
The Government’s argument is that the military judge did
not err because the record discloses a lengthy exchange during
voir dire, in which the military judge, the parties, and the
members participated, and which included discussion of trial
counsel’s legal support to four of the members. In particular,
the officers in question all responded that they would be
impartial in their consideration of trial counsel’s arguments.
Further, the Government notes, the military judge granted three
of Appellant’s challenges for cause, including two on the ground
of implied bias. Thus, the military judge demonstrated a
willingness to excuse members when warranted. Finally, the
Government contends that the professional relationships at issue
here are more tangential than the social relationship between
2
Defense counsel exercised his peremptory challenge against another member
reducing the final panel to six members.
10
United States v. Richardson, No. 04-0218/MC
the trial counsel and a member in United States v. Downing, 56
M.J. 419 (C.A.A.F. 2002), a case affirmed by this Court.
Discussion
“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. Wiesen, 56 M.J. 172, 174
(C.A.A.F. 2001). R.C.M. 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 rule,
military judges are required to test the impartiality of
potential panel members on the basis of both actual and implied
bias. A military judge’s ruling on a challenge for cause is
reviewed for an abuse of discretion. United States v.
Armstrong,
54 M.J. 51, 53 (C.A.A.F. 2000). Military judges are
afforded a high degree of deference on rulings involving actual
bias. See
Wiesen, 56 M.J. at 174. By contrast, issues of
implied bias are reviewed under a standard less deferential than
abuse of discretion but more deferential than de novo. United
States v. Strand,
59 M.J. 455 (C.A.A.F. 2004). As we have often
stated, “implied bias is reviewed under an objective standard,
viewed through the eyes of the public,” United States v.
Napoleon,
46 M.J. 279, 283 (C.A.A.F. 1997), and it is intended
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United States v. Richardson, No. 04-0218/MC
to address the perception or appearance of fairness of the
military justice system. Wiesen, 56 M.J. at 174. Actual bias,
on the other hand, tests the expressed views of members.
Challenges for actual or implied bias are evaluated based on a
totality of the circumstances. See
Strand, 59 M.J. at 459.
The procedural vehicle for testing for member bias is voir
dire. “Voir dire examination serves to protect [the right to a
fair trial] by exposing possible biases, both known and unknown,
on the part of potential jurors.” McDonough Power Equipment,
Inc. v. Greenwood, 464 U.S. 548, 554 (1984). “Generally, the
procedures for voir dire are within the discretion of the trial
judge.” United States v. Jefferson,
44 M.J. 312, 318 (C.A.A.F.
1996). R.C.M. 912(d) provides that:
The military judge may permit the parties to conduct the
examination of members or may personally conduct the
examination. In the latter event the military judge shall
permit the parties to supplement the examination by such
further inquiry as the military judge deems proper or the
military judge shall submit to the members such additional
questions by the parties as the military judge deems
proper.
The discretion of the military judge, however, is not without
limits. “The standard of review is whether there was a clear
abuse of discretion by the judge in denying individual or group
voir dire.” Jefferson, 44 M.J. at 317 (internal quotation marks
and citations omitted). In Jefferson, for example, this Court
reversed on the ground that the military judge failed to reopen
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United States v. Richardson, No. 04-0218/MC
voir dire so that defense counsel could inquire regarding two
members’ statements that they or a close friend or relative had
been a victim of crime. We recognized that when it occurs to
counsel conducting the voir dire that further inquiry was
omitted on a critical issue, “judges should be patient and allow
that inquiry to be conducted.” Id. at 322.
Applying the law in this case, we agree with the Government
that the appellate record before us today does not demonstrate
grounds for removing LtCols Coz and Heywood on the basis of
implied bias. With respect to these members, the record only
reflects that they knew the trial counsel based on his provision
of legal services to their commands and that the members stated
that their prior contact with counsel would not affect their
deliberations at Appellant’s court-martial.
Defense counsel’s voir dire of Maj Callan presents a more
complete picture and a closer question of implied bias. On the
one hand, like the other three potential members with prior
professional contact with trial counsel, Maj Callan also agreed
that his relationship with the trial counsel would not affect
whether he viewed the Government’s case more or less favorably
than the defense case. And trial counsel stated, “I’ve heard of
him but never met him in person.” On the other hand, Maj Callan
agreed trial counsel was “a good legal adviser” and “a trusted
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United States v. Richardson, No. 04-0218/MC
legal advisor,” which might suggest to a public observer a pre-
existing and favorable bond.
However, we need not ultimately decide whether or not the
military judge erred with respect to defense counsel’s challenge
to Maj Callan on this record. This is because we agree with
Appellant that the military judge erred by not conducting
further inquiry into the nature of the trial counsel’s
professional relationship with LtCols Heywood and Coz as well as
Maj Callan for the purpose of determining whether and how those
relationships might have implicated the doctrine of implied
bias. In short, we do not have sufficient facts either to reach
this conclusion, or to preclude its possibility.
The potential for concern is magnified in this context
because whatever the qualitative nature of trial counsel’s
professional relationships with these members, we do know that
much of the advice rendered was in the area of criminal law.
This raises the possibility that trial counsel may have already
established a rapport with three of the six members on criminal
matters or sentencing issues that might have arisen at
Appellant’s court-martial. In such a context, the military
judge had a responsibility to further examine the nature of
relationships in the context of implied bias review,
particularly when asked to do so by defense counsel. Thus, in
this case the appearance of a panel biased in favor of the trial
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United States v. Richardson, No. 04-0218/MC
counsel was heightened where three of the final members had
prior professional contact with trial counsel and the military
judge declined to explore fully, or to allow defense counsel to
explore fully, the nature of the prior professional contact.
We recognize that in military practice, the qualitative
nature of the relationships between trial attorneys and officers
in the commands those attorneys advise will cover a wide range
of experiences. Some officers, including commanders, and the
attorneys will establish a close personal and professional bond
based on shared experience, for example, combat service, or
regular garrison contact. In other contexts, the contact may be
singular or passing; formal and professional, but not indicative
of special deference or bonding. Moreover, in deployed
circumstances, one lawyer may have professional contact with
many, if not all, of the senior members of a command who might
serve as panel members within that command. Thus, we decline to
adopt a per se ground for challenge, while at the same time
emphasizing the importance of thorough voir dire in such
circumstances.
The present record tends to suggest formal and professional
relationships, but not ones marked by particular bonding
suggesting deference. At this point, however, we do not
ultimately know where on the continuum these particular
relationships resided. Further inquiry was warranted when
15
United States v. Richardson, No. 04-0218/MC
requested by defense counsel. Among other things, in this case,
further voir dire might have explored whether the members were
predisposed to crediting trial counsel’s views on the
application of the criminal law in Appellant’s case or his views
on sentencing over the views of the military judge or defense
counsel. Alternatively, these panel members might simply have
viewed trial counsel as just another lawyer whom they were
required to consult in a prior context. Regarding LtCol Coz,
for example, further voir dire might have determined what “the
legal problems” in question were and how they were resolved. In
addition, trial counsel essentially was allowed to give an
unrebutted account of his professional relationship with Maj
Callan. Further voir dire might have explored the difference
between Maj Callan’s perception of trial counsel as a trusted
legal adviser, and counsel’s statement that “I’ve heard of [Maj
Callan] but never met him in person.”
Implied bias review is more than, as the Government
suggests, a question as to whether the members were honest when
they said they would be fair. There is nothing in the record to
suggest otherwise. Moreover, Appellant has not challenged on
the ground of actual bias. But in the context of implied bias,
this case is not about the members’ integrity. Taking into
account the military judge’s determination that the members were
truthful in their responses, the question is would the public
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United States v. Richardson, No. 04-0218/MC
nonetheless perceive the trial as being less than fair given the
nature of the prior and existing relationships between trial
counsel and certain panel members?
Nor are we in a position to defer to the military judge’s
conclusions. It is clear in the record that the military judge
considered implied bias in his ruling. He stated so, and his
ruling followed lengthy argument by both counsel on implied
bias. However, the record does not contain a statement of the
standard used by the military judge in his ruling or an
application of that standard. Among other things, the military
judge’s ruling does not provide an explanation as to why and how
LtCol Spillers’s relationship with Capt Gilbert factored “to a
very lesser degree” into his grant for cause on the ground of
implied bias, but was not addressed or distinguished with
respect to LtCols Heywood and Coz or Maj Callan. This is
particularly noteworthy because LtCol Spillers’s responses to
the military judge’s questions on this issue were almost
identical to those of LtCols Heywood and Coz. As we stated in
Downing, “[w]e do not expect record dissertations but . . . a
clear signal that the military judge applied the right law.
While not required, where the military judge places on the
record his analysis and application of the law to the facts,
deference is surely warranted.” 56 M.J. at 422.
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United States v. Richardson, No. 04-0218/MC
Finally, our opinion in this case should not be read to
necessarily bar the participation of members who might have had
previous or current official contact with the trial
participants. To the contrary, we recognize that in a close-
knit system like the military justice system, such situations
will arise and may at times be unavoidable. But where such
situations are identified, military judges should not hesitate
to test these relationships for actual and implied bias. And a
factual record should be created that will demonstrate to an
objective observer that notwithstanding the relationships at
issue, the accused received a fair trial. Member voir dire is
the mechanism for doing so.
Conclusion
In this case the prior professional contacts between trial
counsel and three of the six seated members at appellant’s
court-martial, including conversations related to criminal law
matters, warranted further inquiry in light of defense counsel’s
challenges for implied bias and his request to conduct further
voir dire. Moreover, unlike the defense counsel in Jefferson,
counsel in this case sought to ask additional questions while
voir dire was still ongoing. Accordingly, we conclude that the
military judge abused his discretion by failing to apply the
correct legal standard for implied bias to the challenges of
LtCols Heywood and Coz and Maj Callan. There was a further
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United States v. Richardson, No. 04-0218/MC
abuse of discretion in the denial of counsel’s request to reopen
voir dire in a case raising implied bias considerations.
Decision
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is reversed. Ordinarily, we would order a
remand to that court with instructions either to supplement the
record with information regarding the three members at issue or
to order a hearing pursuant to United States v. DuBay, 17 C.M.A.
147,
37 C.M.R. 411 (1967). However, we conclude that in this
case, further fact-finding offers little prospect of addressing
the considerations raised in this case. Appellant’s court-
martial occurred over five years ago. We conclude that it is
unfair to Appellant and to the officers concerned to ask those
officers to recall now under oath the circumstances of their
professional contact with trial counsel, and to do so in
sufficient detail to permit implied bias review. The interests
of justice and the administration of military justice are better
served by deciding this case now, rather than by setting in
motion a further cycle of fact-finding and delay, which may in
the end fall short of applicable legal standards.
The findings and sentence are set aside. The record of
trial is returned to the Judge Advocate General of the Navy. A
rehearing may be ordered.
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