                         UNITED STATES, Appellee

                                         v.

              Jermaine M. CLAY, Private First Class
                   U.S. Marine Corps, Appellant


                                  No. 05-0779
                        Crim. App. No. 200101952


       United States Court of Appeals for the Armed Forces

                         Argued October 17, 2006

                        Decided January 25, 2007

BAKER, J., delivered the opinion of the Court, in which EFFRON,
C.J., and ERDMANN, J., joined.

STUCKY and RYAN, JJ., did not participate.

                                     Counsel


For Appellant: Lieutenant Richard H. McWilliams, JAGC, USNR
(argued); Lieutenant Robert Salyer, JAGC, USN (on brief).


For Appellee: Major Wilbur Lee, USMC (argued); Commander
Charles N. Purnell II, JAGC, USN, (on brief); Colonel Ralph F.
Miller, USMC, and Lieutenant Kathleen A. Helmann, JAGC, USNR


Military Judge:    P. J. McLaughlin



            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Clay, No. 05-0779/MC


     Judge BAKER delivered the opinion of the Court.

     Appellant was tried by a general court-martial composed of

officer and enlisted members.   Contrary to his pleas, he was

convicted of one specification of rape and two specifications of

indecent assault in violation of Articles 120 and 134, Uniform

Code of Military Justice (UCMJ), 10 U.S.C. §§ 920, 934 (2000).

The adjudged sentence included a dishonorable discharge,

confinement for ten years, forfeiture of all pay and allowances,

and reduction to E-1.   The convening authority approved the

sentence as adjudged.   The court below affirmed.   United States

v. Clay, No. NMCCA 200101952 (N-M. Ct. Crim. App. July 29,

2005).

     On Appellant’s petition, we granted review of the following

issue:

     WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE
     DENIED THE DEFENSE CHALLENGE FOR CAUSE AGAINST COLONEL [J],
     A MEMBER DETAILED TO THE COURT-MARTIAL PANEL, WHO
     DEMONSTRATED A DRACONIAN AND INELASTIC ATTITUDE TOWARD
     SENTENCING.

                            BACKGROUND

     Appellant, an E-2, was accused of raping and indecently

assaulting a female Marine lance corporal, and of indecently

assaulting a female Marine private first class.

     Appellant’s court-martial consisted of eight members, four

officers and four enlisted personnel.    The senior member

selected to serve on the panel was Colonel (Col) J.    On voir


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United States v. Clay, No. 05-0779/MC


dire, Col J was asked whether his ability to judge the case

would be affected by the fact that he had two daughters.   In

response, Col J stated:

     I will objectively view the case; but let me be very
     candid. I have a 15-year[-]old daughter and a 7-year[-]old
     daughter who I would protect with my life; and if I
     believed beyond a reasonable doubt that an individual were
     guilty of raping a young female, I would be merciless
     within the limit of the law.

     Emphasis added.   Upon further questioning by trial counsel,

the following exchange took place:

     TC: Colonel, as far as the case in front of you today, are
     you saying that the fact that you have two daughters would
     prevent you from viewing the evidence presented to you in
     court objectively?

     [Col J]: No, I’m not saying that at all. I’m just saying
     that I view that particular offense, should an individual
     be guilty of that offense, as being as serious [an] offense
     as I can think of.

     TC: But you are basically saying that at this moment, you
     do presume the accused to be innocent in this case?

     [Col J]:   Yes.

     TC: And you would wait until there was evidence presented
     to see if the government has met its burden of proof?

     [Col J]:   Absolutely.

     TC: Let’s assume, sir, that there is a sentencing phase in
     this case, the judge would instruct you that you would have
     to be able to consider the entire range of punishments that
     this court-martial may lawfully impose as a punishment and
     that would include from the maximum punishment available
     down the scale to one of the appropriate punishments could
     be no punishment. But you are required to at least
     consider those and that would depend on obviously
     sentencing evidence, aggravation evidence, extenuation and
     mitigation. Do you understand that?


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United States v. Clay, No. 05-0779/MC



     [Col J]:   Yes, I do.

     TC: At the beginning point you would have to have an
     elastic view toward sentencing to be able to view the full
     range of punishments. Could you do that, sir?

     [Col J]: I believe I could. I just wanted to be candid
     about my own moral convictions with regard to this.

     TC: My direct question, sir, is that if the judge directed
     you that you’re required as a matter of law to consider the
     entire range of punishments, would you do that?

     [Col J]:   I would do so.

     Emphasis added.   Based on this exchange, Appellant

challenged Col J for cause.    The military judge denied the

challenge without explanation.    Appellant exercised his sole

peremptory challenge against Col J.    He preserved this issue for

appeal by stating that he would have used his peremptory

challenge against another court member had the challenge for

cause against Col J been granted.     See Rule for Courts-Martial

(R.C.M.) 912(f)(4).

                              DISCUSSION

     It is settled law that a military judge should grant a

challenge for cause not only where a court member demonstrates

an inelastic disposition concerning an appropriate sentence for

the offenses charged, but also where the presence of that member

on the panel would create an objective appearance of unfairness

in the eyes of the public.    R.C.M. 912(f) Discussion;    United

States v. Giles, 48 M.J. 60, 62-63 (C.A.A.F. 1998).       The


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United States v. Clay, No. 05-0779/MC


question in this case, is whether Col J’s responses during voir

dire created an objective perception that Appellant would not

receive a fair sentence determination and whether the military

judge should have granted an implied bias challenge.

     The Government contends, and the lower court agreed, that

the military judge did not abuse his discretion because Col J

did not display either actual or implied bias in favor of a

harsh sentence in all cases of rape.    Clay, No. NMCCA 200101952,

slip op. at 4.   In the lower court’s words, Col J’s “notion of

appropriate punishment was made as the father of two daughters,

the eldest of whom was 15, and applied specifically to ‘an

individual . . . guilty of raping a young female.’    His premise

did not apply in this case, where the victim was an adult

marine.”   Id. Appellant argues, as he did at trial, that Col J’s

responses during voir dire exhibited an inelastic disposition on

sentencing.   According to Appellant, based on either actual or

implied bias, the military judge erred by not dismissing Col J

for cause.

     R.C.M. 912(f)(1)(N) requires the removal of a court member

“in the interest of having the court-martial free from

substantial doubt as to legality, fairness and impartiality.”

This rule encompasses both actual and implied bias.    United

States v. Strand, 59 M.J. 455, 458 (C.A.A.F. 2004).    Actual and

implied bias are “separate legal tests, not separate grounds for


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United States v. Clay, No. 05-0779/MC


challenge.”   United States v. Armstrong, 54 M.J. 51, 53

(C.A.A.F. 2000).

     Because a challenge based on actual bias involves judgments

regarding credibility, and because “the military judge has an

opportunity to observe the demeanor of court members and assess

their credibility during voir dire,” a military judge’s ruling

on actual bias is afforded great deference.   United States v.

Daulton, 45 M.J. 212, 217 (C.A.A.F. 1996).    In light of Col J’s

statements on the record that he could be fair, and the military

judge’s observations of those statements, the issue in this case

is not one of actual bias, but one of implied bias, and in

particular, the application of the liberal grant mandate.

     Implied bias is an objective test, “viewed through the eyes

of the public, focusing on the appearance of fairness.”    United

States v. Rome, 47 M.J. 467, 469 (C.A.A.F. 1998).    Accordingly,

a military judge’s ruling on implied bias, while not reviewed de

novo, is afforded less deference than a ruling on actual bias.

Strand, 59 M.J. at 458.   Further, in light of the role of the

convening authority in selecting courts-martial members and the

limit of one peremptory challenge per side, military judges are

enjoined to be liberal in granting defense challenges for cause.

United States v. Moreno, 63 M.J. 129, 134 (C.A.A.F. 2006).

Challenges based on implied bias and the liberal grant mandate




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United States v. Clay, No. 05-0779/MC


address historic concerns about the real and perceived potential

for command influence on members’ deliberations.1

     The liberal grant mandate has been recognized since the

promulgation of the Manual for Courts-Martial, United States

(1951 ed.).   See United States v. White, 36 M.J. 284, 287

(C.M.A. 1993).   Recently, this Court stated “[a]gain, we note

that this Court has enjoined military judges to follow a liberal

grant mandate in evaluating challenges for cause.”   United

States v. Leonard, 63 M.J. 398, 402 (C.A.A.F. 2006).    We

emphasized the same point in Moreno when we stated that

“‘[m]ilitary judges must follow the liberal-grant mandate in

ruling on challenges for cause’ asserted by an accused. . . .

Thus, we will overturn a military judge’s ruling on an accused’s

challenge for cause where he clearly abuses his discretion in

applying the liberal grant mandate.”    63 M.J. at 134 (citations

omitted).   A military judge who addresses implied bias by

applying the liberal grant mandate on the record will receive

more deference on review than one that does not.    “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


1
  The criteria for member selection specified by Article 25,
UCMJ, 10 U.S.C. § 825 (2000), and challenges for cause based on
R.C.M. 912(f) are additional safeguards against both the reality
and perception of unfairness.

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United States v. Clay, No. 05-0779/MC


application of the law to the facts, deference is surely

warranted.”    United States v. Downing, 56 M.J. 419, 422

(C.A.A.F. 2002).

        In short, the liberal grant mandate is part of the fabric

of military law.    The mandate recognizes that the trial

judiciary has the primary responsibility of preventing both the

reality and the appearance of bias involving potential court

members.    To start, military judges are in the best position to

address issues of actual bias, as well as the appearance of bias

of court members.    Guided by their knowledge of the law,

military judges observe the demeanor of the members and are

better situated to make credibility judgments.    However, implied

bias and the liberal grant mandate also recognize that the

interests of justice are best served by addressing potential

member issues at the outset of judicial proceedings, before a

full trial and possibly years of appellate litigation.      The

prompt resolution of member challenges spares the victim the

potential of testifying anew, the government the expense of

retrial, as well as society the risk that evidence (in

particular witness recollection) may be lost or degraded over

time.    As a result, in close cases military judges are enjoined

to liberally grant challenges for cause.    It is at the

preliminary stage of the proceedings that questions involving




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United States v. Clay, No. 05-0779/MC


member selection are relatively easy to rapidly address and

remedy.

     This Court has stated that in the absence of actual bias,

“implied bias should be invoked rarely.”   Leonard, 63 M.J. at

402 (citations and quotations marks omitted); Strand, 59 M.J. at

458 (citations and quotations marks omitted); Rome, 47 M.J. at

469 (citation omitted); United States v. Lavender, 46 M.J. 485,

488 (C.A.A.F. 1997).   Taken at face value, that statement could

be construed to be at odds with the liberal grant mandate.     The

statement, however, is not a reflection of a legal doctrine

expressing judicial reticence or disdain for the finding of

implied bias.   Instead, the statement reflects that where actual

bias is found, a finding of implied bias would not be unusual,

but where there is no finding of actual bias, implied bias must

be independently established.

     It follows that in the absence of actual bias, where a

military judge considers a challenge based on implied bias,

recognizes his duty to liberally grant defense challenges, and

places his reasoning on the record, instances in which the

military judge’s exercise of discretion will be reversed will

indeed be rare.   In such circumstances, what might appear a

close case on a cold appellate record, might not appear so close

when presented from the vantage point of a military judge

observing members in person and asking the critical questions


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United States v. Clay, No. 05-0779/MC

that might fill any implied bias gaps left by counsel.     On the

other hand, we have not hesitated to find implied bias where

warranted.    See e.g., Leonard, 63 M.J. at 403; United States v.

Wiesen, 56 M.J. 172, 177 (C.A.A.F. 2001).

        This is a close case, and there is no record that the

military judge considered implied bias or the liberal grant

mandate.    Thus, there is no record regarding whether, how, and

with what nuance, the military judge applied the principles

embodied in the implied bias doctrine.

        On the one hand, Col J stated any number of times that he

presumed Appellant was innocent and would look at the evidence

objectively.    When pressed on these points, he stuck to his

guns.    On paper, Col J’s reference to his young daughters might

suggest an emotive content to his answers that may have been

less apparent in person.

        On the other hand, Col J did not say that his beliefs about

the appropriate sentence were limited to cases involving girls

fifteen years and younger, as the lower court suggests.    He said

that he would be “merciless” to someone he found guilty of

raping a “young female.”    When trial counsel sought to

“rehabilitate” Col J regarding a possible inelastic attitude on

sentencing, Col J agreed that Appellant was presumed innocent

and that Col J would hold the Government to its burden of proof,

but he also returned to his earlier theme.    Asked if he could


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United States v. Clay, No. 05-0779/MC

still view the evidence objectively, Col J volunteered his

belief that rape was “as serious [an] offense as I can think

of.”   When asked whether he could have an “elastic” view toward

sentencing and consider the full range of sentences, Col J

responded equivocally, saying “I believe I could.”   Again, he

volunteered commentary about his “moral convictions” regarding

the crime of rape.   In this context, these statements dilute Col

J’s agreement that he would “consider the entire range of

punishments” if the military judge directed him to do so “as a

matter of law.”   His answers, taken together, create the

perception that if Col J, the senior member of the panel, were

convinced of Appellant’s guilt he would favor the harshest

sentence available, without regard to the other evidence.

       Based on these factors and the record before this Court, we

conclude that the military judge erred in denying the challenge

for cause against Col J and abused his discretion by not
                                                       2
applying the liberal grant mandate to the challenge.

                              DECISION

       The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is reversed and the findings and sentence



2
  Although military or national security exigencies may create
personnel circumstances relevant to the liberal grant analysis,
there is no indication in the record that this was the reason
for the military judge’s denial of Appellant’s challenge for
cause.

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United States v. Clay, No. 05-0779/MC

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

Advocate General of the Navy.   A rehearing may be authorized.




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