United States v. Downing

                         UNITED STATES, Appellee

                                        v.

                Jon M. DOWNING, Airman First Class
                     U.S. Air Force, Appellant

                                  No. 01-0602

                           Crim. App. No. 33953

___________________________________________________________

    United States Court of Appeals for the Armed Forces

                        Argued November 28, 2001

                         Decided April 18, 2002

BAKER, J., delivered the opinion of the Court, in which GIERKE
and EFFRON, JJ., joined. CRAWFORD, C.J., filed an opinion
concurring in part and in the result. SULLIVAN, S.J., filed an
opinion concurring in the result.

                                     Counsel

For Appellant: Captain Kyle R. Jacobson (argued);
   Lieutenant Colonel Beverly B. Knott and Lieutenant
   Colonel Timothy W. Murphy (on brief).

For Appellee: Captain Matthew J. Mulbarger (argued);
   Colonel Anthony P. Dattilo and Major Lance B. Sigmon (on
   brief); Captain Suzanne Sumner.


Military Judge:       W. Thomas Cumbie
     THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION
United States v. Downing, No. 01-0602AF


     Judge BAKER delivered the opinion of the Court.

     Consistent with his pleas, appellant was convicted of

wrongful use of LSD on divers occasions, in violation of

Article 112a, Uniform Code of Military Justice (UCMJ), 10

USC § 912a.    A general court-martial composed of officer

members sentenced him to a bad-conduct discharge.     The

convening authority approved the sentence as adjudged, and

the court below affirmed.     United States v. Downing, No.

33953 (A.F. Ct.Crim.App. April 9, 2001).

     This Court granted review of the following issue:

             WHETHER THE MILITARY JUDGE ABUSED HIS
             DISCRETION BY DENYING TRIAL DEFENSE
             COUNSEL’S CHALLENGE FOR CAUSE AGAINST
             SECOND LIEUTENANT SCOTT, A FRIEND OF
             ONE OF THE PROSECUTORS IN APPELLANT’S
             CASE.

For the reasons set forth, we conclude that the record does

not reflect whether the military judge applied the correct

legal standard in evaluating a challenge for cause based on

implied bias.    Nevertheless, since appellant did not carry

his burden at trial or on appeal of establishing facts that

would warrant application of the doctrine of implied bias,

we affirm.

                            Background

     During general voir dire, the military judge advised

the members that “if you know of any matter which might



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United States v. Downing, No. 01-0602AF


affect your impartiality to sit as a court member, then you

must disclose that matter when asked to do so.”     The

military judge also asked the members whether “anyone had

any dealings with the parties to this trial which might

affect your performance as a court member in any way?”      He

received a negative response.

     Following general voir dire of the members, the two

trial counsel, Captains (Capt) McNeil and Marposon, and

defense counsel, Capt Kennedy, requested an opportunity to

conduct individual voir dire of Second Lieutenant (2Lt)

Scott.     Questioning by trial counsel revealed that 2Lt

Scott was section commander for the 95th Civil Engineering

Group.   In this capacity, she assisted her group commander,

and others, on matters of military justice and discipline

involving the Civil Engineering Group’s approximately 250

military members.    Therefore, she was “pretty familiar with

the attorneys in the legal office.”

     Trial counsel’s voir dire of 2Lt Scott included the

following:

     TC: And you – this is kind of a small base, you’ve
     also had a chance to socialize with some folks in the
     legal office?

     MBR:    Yes, sir.

     TC:    Okay.   The same group of people?

     MBR:    Yes, sir.


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United States v. Downing, No. 01-0602AF


     TC: Have you ever questioned for yourself whether
     that socializing with these other attorneys in the
     office has made it difficult for you to act
     impartially for the Civil Engineering Group?

     MBR:    No, it’s never affected my decisions.

     Defense counsel’s individual voir dire included the

following exchange:

     DC: Lieutenant Scott, outside duty hours, 7:30 to
     4:30, have you had occasion to speak with Captain
     Marposon [the trial counsel] on a social basis?

     MBR:    Yes, ma’am.

     DC:    All alone?

     MBR:    Yes, ma’am.

     DC: Okay. Could you character [sic] your
     relationship with him? At any time you’ve known him.
     I mean, friendship?

     MBR: With him – yes, friendship. I’ve known him
     since about April, I think. We’re friends.

     Defense counsel’s questioning also indicated that Capt

Marposon had recently bought a car from 2Lt Scott, and that

2Lt Scott had twice visited a beach house in the Los

Angeles area shared by Capt Marposon and “other folks.”

2Lt Scott indicated that these visits were “[n]ot with him,

but I’ve been to his beach house.”    Finally, 2Lt Scott

indicated that she had spoken with Capt Marposon during the

past two weeks “[j]ust at work, probably ten times. . . .

I think only during duty hours, maybe a little less than

that.”


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United States v. Downing, No. 01-0602AF


     In response to this voir dire, the military judge

asked 2Lt Scott, inter alia, whether there was anything

about her friendship with Capt Marposon, or anyone in the

legal office for that matter, that would cause her to give

more weight to the Government’s side of the case than she

would to the defense side.   She answered,   “No, sir.”

     Defense counsel challenged 2Lt Scott for cause, “based

on RCM 912(f)(1)(N), actual or implied bias.”    At the

request of the military judge, defense counsel elaborated

as follows, making it clear that her challenge was founded

in implied bias:

     Sir, based on her answers to the questions I just
     asked her about her dealings with Captain Marposon,
     about her friendship with him. I know she said that
     she could, you know, adjudge a fair sentence and
     maintain that fair attitude, but based on implied
     bias, looking through the eyes of society, it would
     seem unfair to allow her to stay on the court; it
     would create an appearance of impropriety.

     The military judge immediately responded with the

following ruling:

     I will state for the record that I viewed very closely
     the answers by Lieutenant Scott and her demeanor
     during the course of the questioning and, quite
     frankly, I noticed an incredulous look when I asked
     her if she thought that would in any way affect her
     impartiality. I kind of got this “You gotta be
     kidding me” look. There is clearly no actual bias in
     this case, and folks are friends with folks all over
     the base, and Lieutenant Scott said she could clearly
     set that information aside and I think quite clearly
     that she can. The challenge for Lieutenant Scott is
     denied.”


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United States v. Downing, No. 01-0602AF



     Defense counsel subsequently used her peremptory

challenge against 2Lt Scott and preserved the issue for

appeal by noting that she would have used her peremptory

challenge against another member, if her challenge for

cause against 2Lt Scott had been granted.   Defense counsel

did not indicate against which other member the peremptory

challenge would have been made.

     Before this Court, appellate government counsel argue

that 2Lt Scott was a social acquaintance of Capt Marposon

and not a close personal friend.   As a result, they argue,

the military judge properly found friendships like that

described by 2Lt Scott were too common to serve as a basis

for implied bias.   Therefore, the Government asserts, this

indicates the military judge applied the “eyes of the

public” standard, an objective standard, and found no

implied bias.   The Government concludes that this is not a

situation where a reasonable, disinterested observer would

doubt the fairness and integrity of the court-martial.

     Appellant argues that trial counsel and 2Lt Scott had

a close personal relationship that included social,

financial, and professional dealings, and that the military

judge applied an incorrect legal standard to a challenge




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United States v. Downing, No. 01-0602AF


based on implied bias by finding only that “folks are

friends with folks all over the base.”

      The court below found that the first part of the

judge’s finding “reflected his application of the ‘eyes of

the public’ standard for implied bias[.]”          According to

that court, “the judge was, in essence, holding that

friendships are too common among military personnel on an

installation to constitute grounds for per se bias.”

Unpub. op. at 4.

                              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 MJ 172, 174

 (2001).     RCM 912(f)(1)(N), Manual for Courts-

Martial, United States (2000 ed.), 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, this Court has determined that a

member shall be excused in cases of implied bias, as well

as in cases of actual bias.        United States v. Napoleon, 46


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


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United States v. Downing, No. 01-0602AF


MJ 279, 282-83 (1997); United States v. Minyard, 

46 MJ 229, 231

 (1997); United States v. Daulton, 

45 MJ 212, 217

(1996); United States v. Harris, 

13 MJ 288, 292

 (CMA 1982).

     In light of the manner in which members are selected

to serve on courts-martial, including the single peremptory

challenge afforded counsel under the UCMJ, this Court has

determined that military judges must liberally grant

challenges for cause.   

Daulton, supra

 (“[M]ilitary judges

must follow the liberal-grant mandate in ruling on

challenges for cause . . . .”) (quoting United States v.

White, 

36 MJ 284, 287

 (CMA 1993)).     However, the burden of

persuasion remains with the party making the challenge.

RCM 912(f)(3), Manual, supra.

     A military judge’s ruling on a challenge for cause is

reviewed for an abuse of discretion.     United States v.

Armstrong, 

54 MJ 51, 53

 (2000).     Military judges are

afforded a high degree of deference on rulings involving

actual bias.   This reflects, among other things, the

importance of demeanor in evaluating the credibility of a

member’s answers during voir dire.     By contrast, issues of

implied bias are reviewed under a standard less deferential

than abuse of discretion but more deferential than de novo.

Id.

 at 54 (citing Napoleon, supra at 283).     Observation of

the member’s demeanor may inform judgments about implied


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United States v. Downing, No. 01-0602AF


bias; however, “implied bias is reviewed under an objective

standard, viewed through the eyes of the public.”

Napoleon, 

46 MJ at 283

, citing 

Daulton, supra.

    As this

Court has often stated, at its core, implied bias addresses

the perception or appearance of fairness of the military

justice system.   Wiesen, 

56 MJ at 174

.

     In this case, the military judge’s otherwise thorough

voir dire does not reflect that he applied the correct

legal standard to appellant’s challenge for implied bias.

The Government argues, and the court below found, that the

military judge’s statement that “folks are friends with

folks,” “in essence” addresses the concerns inherent in the

challenge to 2Lt Scott.   However, the military judge’s

analysis falls qualitatively short, if indeed it was

intended to address implied bias at all.

     First, it frames but does not squarely address the

essential question -- was the military judge satisfied that

an objective public observer would find this level of

friendship between the prosecutor and a member of the

court-martial panel consonant with a fair and impartial

system of military justice?   The judge’s ruling seems to

focus entirely on 2Lt Scott’s statement that she could and

would act impartially.    Second, there is no indication that

the military judge considered the effect, if any, that the


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United States v. Downing, No. 01-0602AF


liberal-grant mandate should have on his ruling.        The

military judge may well have intellectually applied the

right test.    However, the law is clear in this area, and we

decline to conclude as the court below did that the

military judge actually applied the correct test for

implied bias.    We do not expect record dissertations but,

rather, 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.

     Nonetheless, appellant has not met his burden of

establishing that grounds for challenge against 2Lt Scott

based on implied bias existed.      In reaching this

conclusion, we need not accept either party’s invitation to

characterize 2Lt Scott’s friendship with Capt Marposon as

“close” or merely one of “social acquaintance.”        Such an

exercise too easily lends itself to semantic debate,

without substantive precision.      What we do know is that 2Lt

Scott and Capt Marposon were company grade friends based on

professional assignment to the same installation.        We know

that they knew each other for six months.      We know that

they had cause to speak by telephone approximately ten

times in the two weeks preceding trial, and that this

contact occurred during duty hours.      We know that 2nd Lt


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United States v. Downing, No. 01-0602AF


Scott’s duties necessarily required such contact during

duty hours.   We know that this friendship extended beyond

professional hours to social settings.    2Lt Scott indicated

she went to a beach house that Capt Marposon shared with

other officers, but not necessarily to see Capt Marposon.

And, we know that Capt Marposon at some point bought a car

from 2Lt Scott.   In addition, the military judge observed a

look of incredulity when it was suggested to 2Lt Scott that

her friendship with Capt Marposon might affect her

impartiality.   (A measure of actual bias, for sure; but

also relevant to an objective observer’s consideration.)

Applying the liberal-grant mandate, the military judge

could have granted appellant’s challenge for cause, but he

was not required to do so on these facts.

     The record does not reflect a romantic relationship.

Nor does it reflect a dispute over the vehicle sale or

whether there existed an ongoing financial relationship.

The record does not specify the nature of the telephone

calls during the two weeks preceding trial, but we do know

they occurred during duty hours between officers who

previously had official business to conduct.   In short,

appellant has had the opportunity to make his case, but has

not met his burden in doing so.




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United States v. Downing, No. 01-0602AF


     On this record, we hold an objective observer, aware

of Article 25, UCMJ, 

10 USC § 825

, and the military justice

system, would distinguish between officers who are

professional colleagues and friends based on professional

contact and those individuals whose bond of friendship

might improperly find its way into the members’

deliberation room.

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




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United States v. Downing, No. 01-0602/AF


     CRAWFORD, Chief Judge (concurring in part and in the

result):

     As I recently advocated in United States v. Wiesen, 

56 MJ 172

 (2001), if the doctrine of implied bias exists, its

application must be limited “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 could remain impartial in deciding the merits of

the case.”   

Id. at 178

 (Crawford, C. J., dissenting);   see also

United States v. Davenport, 

17 MJ 242, 244

 (CMA 1984)(“What we

have sought to guard against is a member who harbors such bias

toward the crime that he, based upon the facts ... and the law

..., cannot put his personal prejudices aside in order to arrive

at a fair sentence for the accused.”).   Accordingly, I follow

the logic of our other federal appellate courts and examine

individual courtmember disqualification based on that court

member’s ability to be an impartial factfinder and, if required,

a sentencing agent.   I continue to be dismayed by the way this

Court has shifted the focus of implied bias in the two decades

since the Supreme Court decided Smith v. Phillips, 

455 U.S. 209

(1982).    See 

Wiesen, supra

 at 179 n.2 (Crawford, C. J.,

dissenting).
United States v. Downing, No. 01-0602/AF


       A military judge’s ruling on a challenge for cause is

reviewed for a clear abuse of discretion.    See 

Wiesen, supra at 178

.    As the majority opinion explains, the military judge

failed, based on this Court’s precedent, to articulate the

proper legal standard when denying appellant’s casual challenge

of 2Lt Scott for implied bias.    I agree that the military judge

is not required to place his reasoning, analysis, or application

of the law to the facts on the record when adjudicating implied

bias claims.

       I disagree with any requirement for a military judge to

state on the record that “an objective public observer would

find this level of friendship between the prosecutor and a

member of the court-martial panel consonant with a fair and

impartial system of military justice.”    ___ MJ at (9).   First,

to require the military judge to find, and then record, that a

court member’s presence, after being refracted through the prism

of public opinion, is “consonant with a fair and impartial

system of military justice” undercuts the precedent of this

Court, where we have often implied that we can gauge the

public’s concept of fairness as well as any trial judge.

Secondly, if we continue to ignore the answers court members

give under oath during voir dire in our attempt to determine

public perception, to require the military judge to make implied

bias findings on the record seems even more futile.    This Court


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United States v. Downing, No. 01-0602/AF


needs to refocus its sights and apply the doctrine of implied

bias in accordance with Supreme Court precedent.

     Like the majority, I find the military judge’s ruling to be

dispositive of any actual bias claim.   While a statement by the

military judge that he considered the liberal-grant mandate and

that defense counsel failed to persuade him in light of this

mandate that the excusal of 2Lt Scott was necessary would be

helpful on appellate review, no such statement is required.

Military judges are presumed to know the law and apply it

correctly.   United States v. Prevatte, 

40 MJ 396, 398

 (CMA

1994).

     Friendship is not a per se disqualifying factor in

determining whether or not a court member is free from actual or

implied bias.   See, e.g., United States v. Bannwarth, 

36 MJ 265

(CMA 1993)(close friendship between president of the court-

martial and the appellant’s accuser was not automatically

disqualifying); United States v. Porter, 

17 MJ 377

 (CMA

1984)(fact that trial counsel and court member were running

buddies and went on volksmarches together did not constitute

grounds for removing court member for implied bias).

     Routine professional or official relationships between

court members and witnesses are also not per se disqualifying

factors.   See United States v. Warden, 

51 MJ 78

 (1999); United

States v. Ai, 

49 MJ 1

 (1998); United States v. Velez, 

48 MJ 220

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United States v. Downing, No. 01-0602/AF


(1998).   On the other hand, familial relationships can present

disqualifying situations.   See United States v. Glen, 

25 MJ 278

(CMA 1987)(Deputy Staff Judge Advocate erred by not disclosing

to all parties that his sister-in-law was a member of the court-

martial panel).

     Since I find no emotional attachment by 2Lt Scott either to

an issue or participant in appellant’s court-martial, I agree

with the majority that appellant, even in light of this Court’s

liberal-grant mandate, has failed to meet his burden of proof

and persuasion.




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United States v Downing, No. 01-0602/AF


    SULLIVAN, Senior Judge (concurring in the result):



    The majority faults the trial judge for failing to make clear

on the record that he considered appellant’s claim of implied

bias and applied the correct legal test in rejecting that claim.

It then steps in and de novo resolves this claim against

appellant by holding:

                On this record, we hold an objective
          observer, aware of Article 25, UCMJ, 

10 USC § 825

, and the military justice
          system, would distinguish between officers
          who are professional colleagues and
          friends based on professional contact and
          those individuals whose bond of friendship
          might improperly find its way into the
          members’ deliberation room.



__ MJ at (12).   This same majority in United States v. Wiesen, 

56 MJ 172

 (2001), refused to accept this same military reality where

one member was a brigade commander over a significant number of

panel members.



    In my view, it is up to the military judge to determine,

based on all the circumstances of a case, whether a challenge for

cause should be granted on this or any other basis.    See United

States v. 

Wiesen, supra at 182-83

 (Sullivan, S.J., dissenting).

I would review his decision for an abuse of discretion.    

Id.

   I

applaud the majority’s recognition of the military realities in

appellant’s case and conclude that a reasonable basis existed on
United States v. Downing, No. 01-0602/AF

this record for the military judge’s action.    The military judge

in this case did not abuse his discretion in denying appellant’s

challenge for cause.



    Turning to the question whether military judges must

“liberally” grant challenges for cause, I think our position on

this matter should be reconsidered.   See United states v. 

Wiesen, supra

 at 183 n.1 (Sullivan, S.J., dissenting).    Regardless of the

Manual drafters’ assertion that this policy is still in effect,

the President removed the only express statement of this policy

in 1984, more than seventeen years ago!    See RCM 912(f)(3),

Manual for Courts-Martial, United States, 1984; United States v.

White, 

36 MJ 284, 287

 (CMA 1993).    Moreover, policy, unlike law,

is unenforceable and largely hortatory in nature.    See United

States v. Sloan, 

35 MJ 4, 9

 (CMA 1992) (“policy typically is not

law”).   In addition, the reasons for this policy, although deeply

historical in origin, have largely dissipated over time.    See

generally George B. Davis, A Treatise on the Military Laws of the

United States 88 n.1 (3rd Rev. ed. 1913); William Winthrop,

Military Law and Precedents 212-13 (2d ed. 1920 Reprint); William

C. DeHart, Observations on Military Law and the Constitution and

Practice of Courts-Martial 115-16, 125-27 (1846).    Finally, in

view of the broad discretion afforded by this Court to a trial

judge in deciding challenges for cause, a qualitative standard of

liberality is nearly impossible to ensure.    See United States v.

White, supra.

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United States v. Downing, No. 01-0602/AF




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