22 June 2007

The Need for CAAF

Despite the protests of the military services, Congress decided that it was necessary to have a civilian court sitting at the top of the military justice system. After what many thought was a military justice debacle during World War II, Congress just didn’t trust the military to get the justice system right. Although I often criticize the Court, there is a need for the CAAF and United States v. Albaaj, 07-0002/AR (C.A.A.F. Jun. 21, 2007) is an example of why.

As part of voir dire, the military judge asked the members if any of them knew “Emad,” a name that appeared in some of the specifications. Maj Melcher said he did not. Emad, the accused’s brother testified for 21 pages in the record on findings and briefly on sentencing. After trial, Emad reported that he knew Maj Melcher and their contact had been less than cordial.

The evidence from the DuBay hearing shows that Emad worked on the installation and Maj Melcher had sent some rather strong emails denigrating Emad’s performance and questioning his honesty. The accused reported his brother’s antagonistic relationship with Maj Melcher to the convening authority. The convening authority granted no relief.

The Army Court of Criminal Appeals ordered a post-trial DuBay hearing. Maj Melcher admitted that he recognized Emad when Emad took the stand and, although he initially had a negative opinion of Emad, his opinion had changed and he had a favorable opinion of him before trial. The judge conducting the hearing determined there was no basis upon which to challenge Maj Melcher for cause. The ACCA affirmed.

This was a serious case. The appellant was convicted of a number of offenses including sodomy, assault with a means likely to produce death or grievous bodily harm, indecent acts, and making a false official statement. The approved sentence included a DD and 10 years confinement. The military judge and the ACCA tried to save a case that could not be saved. This is one that is so obvious, the base SJA should have seen the writing on the wall and convinced the convening authority to order a new trial.

I see the importance of this case as affirming that a court member has a continuing duty of candor to the court and, whether told to or not, must correct his voir dire answers when he learns they were not accurate. The Court found Maj Melcher's failure to inform the trial court he knew Emad to be juror misconduct requiring reversal of the conviction.

The Court employed the two-part test from United States v. Mack, 41 M.J. 51, 55 (C.M.A. 1994) to resolve the issue: A party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause. The Court cites to R.C.M. 912(f)(1)(N) as the valid basis for a challenge for cause, but doesn’t quote it or explain it. Instead, the opinion is about implied bias and actual bias. R.C.M. 912(f)(1) states that 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.” I’d say Maj Melcher sitting on the court would impair having the court-martial free from substantial doubt as to its fairness and impartiality.

That should end the case.
Does any one have any clues as to why the CAAF is so enamored of the actual and implied bias analysis and refuses to discuss R.C.M. 912?

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