Opinion of the Court
GIERKE, Judge:
A general court-martial composed of officer and enlisted members convicted appellant, pursuant to her pleas, of one specification each of wrongful distribution of lysergic acid diethylamide (LSD), wrongful use of LSD, wrongful use of psilocybin, larceny of military property, and wrongfully giving an altered military identification card to another airman, and 2 specifications of wrongfully altering military identification cards, in violation of Articles 112a, 121, and 134, Uniform [339]*339Code of Military Justice, 10 USC §§ 912a, 921, and 984, respectively. The court-martial sentenced appellant to a bad-conduct discharge, confinement and forfeiture of $800.00 pay per month for 2 years, and reduction to the lowest enlisted grade. The convening authority reduced the forfeitures to $600.00 pay per month for 24 months but otherwise approved the sentence. The Court of Criminal Appeals affirmed the findings and sentence in an unpublished opinion.
Our Court granted review of the following issues:
I
WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT BY REFUSING TO GRANT THE CHALLENGES FOR CAUSE AGAINST TWO MEMBERS WHO HAD RECEIVED A BRIEFING FROM THE SPECIAL COURT-MARTIAL CONVENING AUTHORITY CONCERNING THE STATE OF DISCIPLINE IN THE UNIT AND THE SPECIAL COURT-MARTIAL CONVENING AUTHORITY’S VIEWS OF “APPROPRIATE” LEVELS OF PUNISHMENT.
II
WHETHER APPELLANT’S SENTENCE SHOULD BE SET ASIDE DUE TO UNLAWFUL COMMAND INFLUENCE BY THE SPECIAL COURT-MARTIAL CONVENING AUTHORITY AND HIS STAFF JUDGE ADVOCATE WHEN, 10 DAYS PRIOR TO TRIAL, THEY CONDUCTED A BRIEFING, ATTENDED BY MEMBERS OF THIS COURT-MARTIAL, ON “APPROPRIATE” LEVELS OF PUNISHMENT AND IMPLIED THAT THERE COULD BE ADVERSE CONSEQUENCES FOR FAILING TO COMPLY WITH THEIR VIEWS.
We hold that the military judge erred by refusing to grant the challenges for cause. In light of this holding, we do not decide the second granted issue.
The issues arose as a result of remarks made during a staff meeting several days before the trial. The remarks were attributed to Brigadier General (BGen) Marr, Commander of 62d Airlift Wing, and his staff judge advocate (SJA), Lieutenant Colonel (LtCol) Rollinger. The staff meeting covered a variety of topics, including a 15-20 minute presentation on standards, command responsibility, and discipline. The three most senior members of the court-martial panel were present during the command briefing. Neither BGen Marr nor LtCol Rol-linger was asked to testify at trial by either party, but during voir dire the three court members who attended the meeting described their perception of those remarks. Because Issue I concerns the members’ impartiality, our focus is on the impact of the remarks on the members rather than the exact language, intentions, or motivations of the speakers.
LtCol Snyder was asked during voir dire if he could judge appellant’s case based on the evidence and with an open mind. He responded in the affirmative but then explained:
Now, the nature of being a commander, you’re always having to make decisions and justify them at a minimum in your own mind, if not to your boss and the boss’s commander, which is General Man*. An influence that — most recently we had a commanders’ conference with General Marr where Colonel Rollinger, the Staff Judge Advocate, talked about, you know, standards____ So, there are always those pressures that are inherent with the job that you are weighing advice from the first sergeant, influences from things that you hear at the stand-up, from Colonel Kane, my boss, or General Marr, his boss, giving opinions on what they think is important with regard to the good order and discipline of their unit and your specific unit.
So, yes, I think I can be fair and impartial in this case, but there are factors that are just inherent with the job that are influences that I know enter into anyone in a command position.
[340]*340Turning to the specific remarks at issue, LtCol Snyder described LtCol Rollinger’s briefing as “of a general nature,” involving “illustrative examples of types of punishments and types of actions that commanders had taken.” He said that LtCol Rollinger mentioned one specific example, involving child abuse, where, “in Colonel Rollinger’s opinion, the commander underreacted” and “had shirked his or her leadership responsibilities.”
LtCol Snyder said that BGen Marr also addressed the issue, telling the assembled officers “that we should use the SJA because he speaks for the Wing Commander.” With respect to the specific example cited by LtCol Rollinger, BGen Marr said that he had forwarded a letter to that commander’s new duty location expressing the opinion that “that officer had peaked.”
When asked if he felt that he would be subject to command influence if he voted for a sentence of “no punishment,” LtCol Snyder responded in the negative. He then volunteered that on one occasion he approached BGen Marr and explained his actions after taking disciplinary action that he did not think BGen Marr would agree with.
When asked if he would worry about a letter to a future superior that would cause his career to “peak,” LtCol Snyder responded that he would do what was right but that the remarks at the staff conference were “at a minimum in my subconscious and, you know, parts of it are very clearly in my conscious.”
A second member, Major (Maj) Taylor, remembered LtCol Rollinger describing a case involving sexual abuse of a child where the commander “did not act as he should have.” According to Maj Taylor, LtCol Rol-linger “said that he thought the commander probably should have been given an Article 15 for dereliction of duty and removed of his position.” Maj Taylor said that BGen Marr followed up with “a comment to the effect of, you know, that something on the order of he’s contacted or planning to contact the person that this previous commander worked for and that person’s career in the Air Force is probably not going to be a very lengthy one.”
When questioned about the impact of the remarks, Maj Taylor responded that she looks to the SJA for guidance and advice but that she is responsible for making the decision. She said, “I feel that my opinion is my opinion. Although it can be somewhat influenced by guidance and information out there, but it’s ultimately mine and I’m comfortable with that.”
On questioning by defense counsel, Maj Taylor explained, “I took away [from the staff meeting] what was the [SJA’s], Colonel Rollinger’s, opinion. I took away from there that the commander still has the ultimate responsibility to make the decision, administer the discipline, and that the Legal Office offered advice and guidance.”
A third member, LtCol MacPherson, remembered that LtCol Rollinger gave a presentation on the commander’s responsibility for maintaining good order and discipline. He said that LtCol Rollinger did give examples but that he would “have to think about it to come up with” them. LtCol MacPherson remembered that BGen Marr said that he “expected the commanders to be responsible for maintaining the order and discipline of their unit and that was their job, and that anybody that didn’t, he didn’t — they were appointed to the position because he expected them to maintain that and that was their charge when he put them in there.”
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion of the Court
GIERKE, Judge:
A general court-martial composed of officer and enlisted members convicted appellant, pursuant to her pleas, of one specification each of wrongful distribution of lysergic acid diethylamide (LSD), wrongful use of LSD, wrongful use of psilocybin, larceny of military property, and wrongfully giving an altered military identification card to another airman, and 2 specifications of wrongfully altering military identification cards, in violation of Articles 112a, 121, and 134, Uniform [339]*339Code of Military Justice, 10 USC §§ 912a, 921, and 984, respectively. The court-martial sentenced appellant to a bad-conduct discharge, confinement and forfeiture of $800.00 pay per month for 2 years, and reduction to the lowest enlisted grade. The convening authority reduced the forfeitures to $600.00 pay per month for 24 months but otherwise approved the sentence. The Court of Criminal Appeals affirmed the findings and sentence in an unpublished opinion.
Our Court granted review of the following issues:
I
WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT BY REFUSING TO GRANT THE CHALLENGES FOR CAUSE AGAINST TWO MEMBERS WHO HAD RECEIVED A BRIEFING FROM THE SPECIAL COURT-MARTIAL CONVENING AUTHORITY CONCERNING THE STATE OF DISCIPLINE IN THE UNIT AND THE SPECIAL COURT-MARTIAL CONVENING AUTHORITY’S VIEWS OF “APPROPRIATE” LEVELS OF PUNISHMENT.
II
WHETHER APPELLANT’S SENTENCE SHOULD BE SET ASIDE DUE TO UNLAWFUL COMMAND INFLUENCE BY THE SPECIAL COURT-MARTIAL CONVENING AUTHORITY AND HIS STAFF JUDGE ADVOCATE WHEN, 10 DAYS PRIOR TO TRIAL, THEY CONDUCTED A BRIEFING, ATTENDED BY MEMBERS OF THIS COURT-MARTIAL, ON “APPROPRIATE” LEVELS OF PUNISHMENT AND IMPLIED THAT THERE COULD BE ADVERSE CONSEQUENCES FOR FAILING TO COMPLY WITH THEIR VIEWS.
We hold that the military judge erred by refusing to grant the challenges for cause. In light of this holding, we do not decide the second granted issue.
The issues arose as a result of remarks made during a staff meeting several days before the trial. The remarks were attributed to Brigadier General (BGen) Marr, Commander of 62d Airlift Wing, and his staff judge advocate (SJA), Lieutenant Colonel (LtCol) Rollinger. The staff meeting covered a variety of topics, including a 15-20 minute presentation on standards, command responsibility, and discipline. The three most senior members of the court-martial panel were present during the command briefing. Neither BGen Marr nor LtCol Rol-linger was asked to testify at trial by either party, but during voir dire the three court members who attended the meeting described their perception of those remarks. Because Issue I concerns the members’ impartiality, our focus is on the impact of the remarks on the members rather than the exact language, intentions, or motivations of the speakers.
LtCol Snyder was asked during voir dire if he could judge appellant’s case based on the evidence and with an open mind. He responded in the affirmative but then explained:
Now, the nature of being a commander, you’re always having to make decisions and justify them at a minimum in your own mind, if not to your boss and the boss’s commander, which is General Man*. An influence that — most recently we had a commanders’ conference with General Marr where Colonel Rollinger, the Staff Judge Advocate, talked about, you know, standards____ So, there are always those pressures that are inherent with the job that you are weighing advice from the first sergeant, influences from things that you hear at the stand-up, from Colonel Kane, my boss, or General Marr, his boss, giving opinions on what they think is important with regard to the good order and discipline of their unit and your specific unit.
So, yes, I think I can be fair and impartial in this case, but there are factors that are just inherent with the job that are influences that I know enter into anyone in a command position.
[340]*340Turning to the specific remarks at issue, LtCol Snyder described LtCol Rollinger’s briefing as “of a general nature,” involving “illustrative examples of types of punishments and types of actions that commanders had taken.” He said that LtCol Rollinger mentioned one specific example, involving child abuse, where, “in Colonel Rollinger’s opinion, the commander underreacted” and “had shirked his or her leadership responsibilities.”
LtCol Snyder said that BGen Marr also addressed the issue, telling the assembled officers “that we should use the SJA because he speaks for the Wing Commander.” With respect to the specific example cited by LtCol Rollinger, BGen Marr said that he had forwarded a letter to that commander’s new duty location expressing the opinion that “that officer had peaked.”
When asked if he felt that he would be subject to command influence if he voted for a sentence of “no punishment,” LtCol Snyder responded in the negative. He then volunteered that on one occasion he approached BGen Marr and explained his actions after taking disciplinary action that he did not think BGen Marr would agree with.
When asked if he would worry about a letter to a future superior that would cause his career to “peak,” LtCol Snyder responded that he would do what was right but that the remarks at the staff conference were “at a minimum in my subconscious and, you know, parts of it are very clearly in my conscious.”
A second member, Major (Maj) Taylor, remembered LtCol Rollinger describing a case involving sexual abuse of a child where the commander “did not act as he should have.” According to Maj Taylor, LtCol Rol-linger “said that he thought the commander probably should have been given an Article 15 for dereliction of duty and removed of his position.” Maj Taylor said that BGen Marr followed up with “a comment to the effect of, you know, that something on the order of he’s contacted or planning to contact the person that this previous commander worked for and that person’s career in the Air Force is probably not going to be a very lengthy one.”
When questioned about the impact of the remarks, Maj Taylor responded that she looks to the SJA for guidance and advice but that she is responsible for making the decision. She said, “I feel that my opinion is my opinion. Although it can be somewhat influenced by guidance and information out there, but it’s ultimately mine and I’m comfortable with that.”
On questioning by defense counsel, Maj Taylor explained, “I took away [from the staff meeting] what was the [SJA’s], Colonel Rollinger’s, opinion. I took away from there that the commander still has the ultimate responsibility to make the decision, administer the discipline, and that the Legal Office offered advice and guidance.”
A third member, LtCol MacPherson, remembered that LtCol Rollinger gave a presentation on the commander’s responsibility for maintaining good order and discipline. He said that LtCol Rollinger did give examples but that he would “have to think about it to come up with” them. LtCol MacPherson remembered that BGen Marr said that he “expected the commanders to be responsible for maintaining the order and discipline of their unit and that was their job, and that anybody that didn’t, he didn’t — they were appointed to the position because he expected them to maintain that and that was their charge when he put them in there.”
LtCol MacPherson said that he did not remember LtCol Rollinger commenting about an officer’s career, but he did remember that BGen Marr mentioned sending a letter to a former commander’s superior. When defense counsel asked LtCol MacPher-son whether he had the impression that the officer in question “was going to suffer adverse consequences to his career,” he responded, “The impression definitely was there. The way it was left with me was there was a presentation, the Wing Commander was dissatisfied with the way things had happened and he wrote a letter to the individual’s now present supervisor.”
Defense counsel challenged LtCol Mac-Pherson, LtCol Snyder, and Maj Taylor for [341]*341cause. The military judge granted the challenge of LtCol Snyder but denied the other two.
Appellant now asserts that the military judge abused his discretion by refusing to grant the challenges for cause against LtCol MacPherson and Maj Taylor. He argues that the challenged members “could not be expected to ignore” the comments of BGen Marr, “especially in light of the actions taken against the offending commander.” Final Brief at 8. The Government argues that the military judge did not abuse his discretion and that removal of “the only member potentially affected eliminated any concerns about command influence.” Answer to Final Brief at 2.
RCM 912(f)(l)(N), Manual for Courts-Martial, United States (1995 ed.), provides that a court member “shall be excused for cause whenever it appears that the member ... [sjhould not sit as a member in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality.” This rule includes challenges based on actual bias as well as implied bias. United States v. Lavender, 46 MJ 485, 487 (1997); United States v. Napoleon, 46 MJ 279, 283 (1997); United States v. Minyard, 46 MJ 229, 231 (1997), citing United States v. Daulton, 45 MJ 212, 217 (1996), and United States v. Harris, 13 MJ 288, 292 (CMA 1982). RCM 912(f)(3) provides that “[t]he burden of establishing that grounds for a challenge exist is upon the party making the challenge.”
Military judges must follow the “liberal-grant mandate” in ruling on challenges for cause. United States v. White, 36 MJ 284, 287 (CMA 1993). “We review [a military judge’s] rulings on challenges for cause for abuse of discretion. On questions of actual bias, we give the military judge ‘great deference because we recognize that he has observed the demeanor of the participants in the voir dire and challenge process.’ ” Lavender, supra at 488, quoting Napoleon, supra at 283, quoting White, supra at 287.
We are less deferential on questions of implied bias. Implied bias is reviewed through the eyes of the public. Lavender, supra at 488; Napoleon, supra at 283, citing Daulton, supra at 217. The focus “is on the perception or appearance of fairness of the military justice system.” United States v. Dale, 42 MJ 384, 386 (1995).
The issue becomes more difficult when the basis of a challenge is founded on unlawful command influence. On the one hand, we recognize that a “member’s unequivocal statement of a lack of bias can ... carry weight.” United States v. Mosqueda, 43 MJ 491, 493 (1996), quoting United States v. Nigro, 28 MJ 415, 418 (CMA 1989). We also recognize that the military judge is in the best position to judge the sincerity and truthfulness of the challenged member’s responses on voir dire. See Daulton, supra at 217.
We recognize a commander’s responsibility for discipline, the need occasionally for a more senior commander to intervene to prevent a miscarriage of justice, and the reality that an officer’s lax attitude toward discipline may reflect inaptitude for command. On the other hand, we have long recognized the problems arising in the administration of military justice because of the “subtle pressures that can be brought to bear by ‘command’ in military society____” United States v. Kitts, 23 MJ 105, 108 (CMA 1986). We also have recognized that sometimes it is difficult for a “subordinate [to ascertain] ... the actual influence a superior has on that subordinate.” United States v. Gerlich, 45 MJ 309, 313 (1996). Finally, we have recognized that an SJA, though not a commander, generally acts with “the mantle of command authority.” Kitts, supra at 108.
In reviewing the issue concerning the challenges for cause, we focus on how the members perceived the briefing by LtCol Rollinger and the remarks of BGen Marr. Neither BGen Marr nor LtCol Rollinger was asked to testify, and thus we have only the fragmentary recollections of those who heard the remarks. The perceived message rather than the actual message is what controls, however, because we are concerned with how the message may have affected the impartiality of the court members.
[342]*342There is no question about the candor or sincerity of the members’ responses during voir dire. Their answers disclaimed any bias or partiality, and we do not fault the military judge for finding that the members exhibited no actual bias.
This case, however, involves implied bias. Our concern is with the effect of subtle pressure exerted by the members’ perceptions of what they heard. They heard the Commanding General’s views of the career potential of a commander who had “underreacted” to a disciplinary situation. Unlike the situation involving intemperate remarks of a ship’s captain in United States v. Newbold, 45 MJ 109 (1996), the remarks in this case were spoken by the court members’ commander and his SJA. Unlike the situation in United States v. Reynolds, 40 MJ 198, 202 (CMA 1994), where the SJA intervened after telling his commander that he had “gone too far,” the members heard the SJA make the remarks and heard BGen Marr reinforce them. The remarks were recent and fresh in the minds of the court members. The threat was not hypothetical but was specific and reinforced by a recent example.
The military judge commendably recognized the impact of the remarks on LtCol Snyder: In our view, however, the military judge did not fully appreciate that the same sword of Damocles was hanging over the heads of LtCol MacPherson and Maj Taylor.
We recognize that the remarks at issue were directed at the commander’s role in initiating disciplinary action rather than an officer’s role as a member of a court-martial. Nevertheless, LtCol MacPherson left the staff meeting with the clear impression that a fellow commander’s career was in danger of being abruptly ended because BGen Marr considered his response to a disciplinary situation inadequate. Although Maj Taylor adamantly insisted that “my opinion is my opinion,” she conceded that her opinion “can be somewhat influenced by guidance and information out there.” Under the circumstances, we hold that it was “asking too much” of LtCol MacPherson and Maj Taylor to expect them to impartially adjudge an appropriate sentence without regard for its potential impact on their careers. See Daulton, 45 MJ at 218; Dale, 42 MJ at 886. Accordingly, we hold that the military judge abused his discretion by denying the challenges.
The decision of the United States Air Force Court of Criminal Appeals is affirmed as to findings but reversed as to sentence. The sentence is set aside. The record of trial is returned to the Judge Advocate General of the Air Force. A rehearing on sentence may be ordered.
Chief Judge COX and Judge EFFRON concur.