UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                           Before
                                 RISCH, FEBBO, and WOLFE
                                  Appellate Military Judges

                             UNITED STATES, Appellee
                                          v.
                           Sergeant MONTRELL L. MAYO
                            United States Army, Appellant

                                     ARMY 20140901

                            Headquarters, Fort Carson
                       Douglas K. Watkins, Military Judge
    Lieutenant Colonel Stephanie D. Sanderson, Staff Judge Advocate (pretrial)
           Colonel Paul J. Perrone, Jr., Staff Judge Advocate (post-trial)


For Appellant: Captain Joshua G. Grubaugh, JA (argued), Lieutenant Colonel
Charles D. Lozano, JA; Captain Heather L. Tregle, JA; Captain Joshua G. Grubaugh,
JA (on brief); Colonel Mary J. Bradley, JA; Major Christopher D. Coleman, JA;
Captain Joshua G. Grubaugh, JA (on reply brief).

For Appellee: Captain John Gardella, JA (argued); Colonel Mark H. Sydenham, JA;
Lieutenant Colonel A.G. Courie III, JA; Major Cormac M. Smith, JA; Captain John
Gardella, JA (on brief).


                                        7 April 2017
                                 ---------------------------------
                                 MEMORANDUM OPINION
                                 ---------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

WOLFE, Judge:

       Appellant pleaded not guilty to the murder of his fiancée, Sergeant (SGT)
KW. However, the fact appellant killed SGT KW was not seriously contested at
trial. The opening statement of appellant’s defense counsel included the following
concession: “Members, there is no doubt that either through a combination of
Sergeant Mayo’s actions or his inactions, that he killed Sergeant [KW].” (emphasis
added). The evidence (which included forensic evidence and appellant’s multiple
confessions) overwhelmingly demonstrated appellant struck SGT KW over the head
with an object and then caused her death through strangulation or suffocation.
MAYO—ARMY 20140901

       Instead, the defense’s focus at trial was to minimize appellant’s mens rea and
avoid the mandatory minimum sentence that accompanies a conviction for
premeditated murder. Appellant was ultimately unsuccessful, and a panel of officers
convicted appellant, contrary to his pleas, of one specification of premeditated
murder and one specification of assault consummated by a battery in violation of
Articles 118 and 128, Uniform Code of Military Justice, 10 U.S.C. § 918, 928 (2012)
[hereinafter UCMJ]. The convening authority approved the adjudged sentence of a
dishonorable discharge, confinement for life without eligibility for parole, forfeiture
of all pay and allowances, and reduction to the grade of E-1.

       On appeal, appellant raises two assignments of error. We address in depth
appellant’s argument the military judge erred when he denied appellant’s challenge
for cause of Major (MAJ) MC and also address appellant’s claim that the lack of
requirement of unanimity in panel verdicts violates the Constitution.

                                  BACKGROUND

       On Valentine’s Day 2013 appellant planned a romantic getaway with his
fiancée and fellow soldier, SGT KW. He rented a room at the Plaza Hotel, littered
the floor with rose petals, bought multiple presents and chocolate treats, and
prepared other romantic amenities. Appellant’s romantic preparations, however, did
not dissuade SGT KW from her plans to end the relationship.

        When SGT KW told appellant she wanted to break up with him, he struck her
on the head with a drinking glass several times. The blows caused lacerations to
SGT KW’s scalp, resulted in severe bleeding, and may have rendered her
unconscious. However, the blows to the head were not fatal. Appellant would later
tell other noncommissioned officers that he “thinks he killed his girlfriend,” and he
“strangled” her after she “threatened his career.”

      At trial, the parties presented and argued the evidence in support of their
respective positions. The government attempted to string out the timeline in order to
support its theory that appellant deliberated before deciding to finally kill SGT KW
by suffocation. The defense, in contrast, attempted to shorten the timeline to
support its theory that appellant was guilty of only un-premeditated murder or
possibly manslaughter.

                                    DISCUSSION

                      A. The Challenge for Cause of Major MC

     On appeal, appellant asserts four reasons that either individually or together
demonstrate that the military judge abused his discretion in denying appellant’s


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challenge for cause to MAJ MC. However, only two of the bases asserted on appeal
were preserved at trial.

                   1. Unpreserved Bases for Challenge for Cause

        During individual voir dire the trial counsel elicited that she and MAJ MC had
worked in the same building for about three months, MAJ MC had deployed with the
trial counsel’s father, and MAJ MC was aware she had been working on “a murder
trial.” The trial counsel further elicited she and MAJ MC would run into each other
about once a week, and would have passing conversations about “. . . how are you
doing? How was your weekend? That kind of thing.” Major MC stated that he
knew “nothing” about the case she had been working on, and nothing about their
acquaintance would affect his impartiality. 1

       While being questioned by the trial counsel, MAJ MC volunteered that his
wife’s uncle had been murdered “several years ago.” Major MC stated he was not
close with this uncle-in-law, and his knowledge of the case was based on what his
wife’s family had told him. He stated the murderer admitted his crime to a
“healthcare professional,” but the prosecutor could not move forward with a case
because the confession was privileged.

       When asked how this result made him feel, MAJ MC was quite circumspect
and stated, “It’s a process and the way our Constitution is written, you know certain
things about due process have to be adhered to no matter what. Sometimes you can’t
do anything about certain things.” When asked if he felt frustrated by the
prosecutor’s inability to use the confession he stated, “I understood why. I mean,
I’ve got several different professional folks in my family.” When asked if “there
was anything about this experience that would make it difficult for you to sit on this
panel?” he stated, “No.”

        Appellant did not challenge MAJ MC based on his prior relationship with the
trial counsel or assert that he was biased based on his wife’s uncle’s murder.

       In United States v. McFadden, our superior court made clear that the burden
of establishing a legal and factual basis to support a challenge for cause is on the
party making the challenge. 74 M.J. 87 (C.A.A.F. 2015). The Court of Appeals for
the Armed Forces (CAAF) specifically stated that while a military judge may remove
a member for cause sua sponte, he has no duty to do so. Id. at 90.



1
 It is possible, even likely, the “murder case” the trial counsel had been working on
was the case at bar. However, it was never clarified. The defense counsel did not
ask any questions regarding MAJ MC’s relationship with the trial counsel.

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MAYO—ARMY 20140901

       More recently, the CAAF reaffirmed this framework in the case of United
States v. Dockery, 76 MJ __ (C.A.A.F. 2017). In that case, the government
challenged a panel member only for actual bias. The military judge removed the
member because of his concerns for implied bias. The CAAF described the military
judge’s actions as being “sua sponte.” Id. at *2 and *8 n.3. That is, consistent with
McFadden, as the government’s challenge was only to actual bias the military
judge’s removal of the member for implied bias was a sua sponte act and not a grant
of the government’s challenge.

      Accordingly, the rules require “[t]he party making a challenge shall state the
grounds for it” and “[t]he burden of establishing that grounds for challenge exist is
upon the party making the challenge.” Rule for Courts-Martial [hereinafter R.C.M.]
912(f)(3) (emphasis added). If the military judge had a duty to sua sponte exclude a
member for reasons not asserted, then the burden would no longer be upon the
moving party to establish the basis for a challenge. “[T]he burden of establishing
grounds for a challenge for cause rests upon the party making the challenge.”
United States v. Wiesen, 57 M.J. 48, 49 (C.A.A.F. 2002); United States v. Hennis, 75
M.J. 796, 830 (Army Ct. Crim. App. 2016).

       There is wisdom in this framework. At the voir dire stage of a court-martial,
a military judge is poorly positioned to know what the significant issues in the case
will be and must rely on the parties to develop the record and make an appropriate
challenge. Here, for example, MAJ MC stated that he was not “close” to his wife’s
uncle. Perhaps they never met. Perhaps they had met numerous times but in MAJ
MC’s eyes were not “close.” Similarly, what were the motives and circumstances
surrounding the murder? Was it grossly similar or dissimilar to this case? These are
the unanswered questions the parties could have developed at trial to support their
respective positions.

       Placing a sua sponte duty on the military judge to remove a panel member for
cause for reasons unstated by counsel would necessarily create a duty for the
military judge to inquire, at least on the margin, to try to answer these questions. If
the military judge has a duty to remove a panel member because of a basis that the
challenging party does not assert, the military judge will have a concomitant duty to
probe into all unanswered questions. As is often the case, a military judge during
voir dire knows little about the case, the evidence, or the parties’ theories at trial,
which makes a judge poorly positioned to determine whether any one issue is
important to the case.

       Consider in this case, shortly after the conclusion of voir dire, appellant’s
counsel would concede in his opening that statement appellant caused SGT KW’s
death (although, obviously, without conceding guilt to premeditated murder). Thus,
the substantive issues the panel was required to resolve were substantially different
than in a case where, for example, identity of the assailant or the applicability of

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self-defense is the key question for the members. Given the defense’s theory of the
case, which at the time of voir dire was perhaps known only to them, it was the
defense who was best-positioned to determine whether MAJ MC’s wife’s uncle’s
murder was a valid basis for a challenge for cause—or not. 2

       Accordingly, as appellant did not challenge MAJ MC for cause based on his
prior relationship with the trial counsel or the murder of his wife’s uncle several
years prior, we find that the military judge did not err in failing to grant the
challenge on grounds never raised. Additionally, even when a military judge does
sua sponte remove a member for cause, our superior court has described this remedy
as “drastic.” McFadden, 74 M.J. at 90. Based on the undeveloped record such a
remedy was not required.

                     2. Preserved Bases for Challenge for Cause

       “This [c]ourt's standard of review on a challenge for cause premised on
implied bias is less deferential than abuse of discretion, but more deferential than de
novo review.” United States v. Bagstad, 68 M.J. 460, 462 (C.A.A.F. 2010) (internal
quotation marks omitted) (citations omitted). Under this standard, “[w]e do not
expect record dissertations but, rather, a clear signal that the military judge applied
the right law.” United States v. Downing, 56 M.J. 419, 422 (C.A.A.F. 2002).
Indeed, “where the military judge places on the record his analysis and application
of the law to the facts, deference is surely warranted.” Id.

       As the CAAF has previously made clear, however, “[w]e will afford a military
judge less deference if an analysis of the implied bias challenge on the record is not
provided.” United States v. Peters, 74 M.J. 31, 34 (C.A.A.F. 2015). In cases where
less deference is accorded, the analysis logically moves more toward a de novo
standard of review.

       In short, we review an implied bias challenge for cause on a sliding scale of
deference that depends on how thoroughly the military judge placed his findings on
the record. Recently, the CAAF reaffirmed the standard of review in cases involving
allegations of implied bias. United States v. Woods, 74 M.J. 238, 243 n.1 (C.A.A.F.
2015).


2
 We note while appellant asserted issues of ineffective assistance of counsel, both
as an assigned error and pursuant to Untied States v. Grostefon, 12 M.J. 431 (C.M.A.
1982), appellant does not claim that his counsel was deficient in failing to either
sufficiently voir dire MAJ MC or adequately state a challenge for cause. The
assigned error of ineffective assistance of counsel (which concerned advice on post-
conviction parole) was withdrawn prior to the completion of this appellate review.
We determine the issues personally submitted by appellant do not merit relief.

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MAYO—ARMY 20140901

       “The core of the implied bias test is the consideration of the public's
perception of fairness in having a particular member as part of the court-martial
panel.” United States v. Rogers, 75 M.J. 270, 271 (C.A.A.F. 2016) (internal
citations omitted).

       Appellant limited his challenge for cause of MAJ MC to an implied bias
challenge based on two theories. 3 The first involved MAJ MC’s allegedly close
relationship to law enforcement. The second focused on MAJ MC’s “sensitivity” to
issues of domestic violence based on his wife’s experience with her ex-husband.
The military judge denied the challenge. In doing so, he made an extensive ruling
regarding MAJ MC’s sensitivity to domestic violence but did not address in any
detail why he denied the challenge for cause with regards to MAJ MC’s relationship
to law enforcement. Accordingly, while we review the “totality of the
circumstances” we give more deference to the military judge’s assessment of MAJ
MC’s “sensitivity” to domestic violence and review nearly de novo the challenge
based on his relationship with law enforcement. 4

                                 a. Law Enforcement

       Major MC informed the parties that he had some law enforcement training.
He explained that he worked for the Kentucky Labor Department investigating
“wages and hours” violations by employers. He did this job for about eighteen
months and received training in investigative techniques. Specifically, he received
training on interviewing the employer and gathering evidence such as “time cards.”
He also investigated working conditions and child labor practices. He described his
work as “administrative,” not criminal, and the investigative techniques were “basic
common sense. . . . What would a reasonable person do sort of procedures.” He also
stated his father had served as a Fish and Game officer and a corrections officer
while he was growing up, and his brother served in the Army Reserve as a
Lieutenant Colonel in the Military Police. He clarified his brother had not “really
worked a lot [sic] law enforcement,” and “[m]ost of his stuff has been military
command related and UCMJ-type things that nonjudicial punishments for different
folks in his organization and so on.” Major MC’s explanation of his brother’s duties
is consistent with our understanding of the duties of a commissioned officer in the
Military Police.

3
  The military judge considered the challenge on the basis of both actual bias
(though not specifically asserted) and implied bias, and stated that he considered the
mandate to liberally grant defense challenges for cause.
4
 We address the two grounds for challenge separately because they are factually
unrelated and because of the military judge’s different treatment of the two issues.
Nonetheless, we also consider the totality of the circumstances and their combined
effect. See United States v. Terry, 64 M.J. 295 (C.A.A.F. 2007).

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MAYO—ARMY 20140901

        As the military judge did not explain his reason for denying the challenge, we
review the denial of the challenge on this ground nearly de novo. Nonetheless, we
find no error. Major MC’s connection to law enforcement is tenuous and does not
appear to be recent. To the extent that these issues were developed at trial—which
is to say not much—they would not undermine the public’s perception of fairness in
having MAJ MC sit as a member of appellant’s court-martial. Assisting the
Kentucky Department of Labor in administrative investigations into labor law
violations would not cause a reasonable member of the public to question the fitness
of MAJ MC. Likewise, MAJ MC’s father’s service as a Fish and Game and
corrections officer, and his brother’s service as a Military Police officer (but not one
conducting criminal investigations) would not call into question the appearance of
fairness in the military justice system. We likewise find nothing to support that
MAJ MC held actual bias against appellant based on his experience with law
enforcement.

                          b. Sensitivity to Domestic Violence

       In response to a question by the defense regarding “interactions with domestic
violence,” MAJ MC stated that his wife’s “ex-husband had pushed her around a bit
so that’s some experience there[, a]s far as personal, no.” When asked whether his
wife’s background “shaped or contributed to your attitudes at all about domestic
violence,” MAJ MC responded, “Somewhat, yes.” When asked for further
explanation, he told the military judge the following:

             I mean, it’s a, I guess, a relationship in many cases can be
             a very emotional and for some people it’s a very volatile
             experience especially in this particular--I--my wife’s case
             her ex-husband was an alcoholic and when he would drink
             is when he would get physical and he only got physical
             with her a couple of times according to her, but it was
             enough for her to report it to his command at the time.
             So, I’m very sensitive to it.

       The trial counsel rehabilitated MAJ MC by asking whether there was
“anything about your sensitivity that would make it difficult for you to fairly listen
to the evidence in this case and make a determination based on just the facts in this
case?” Major MC responded, “No.”

      Appellant then challenged MAJ MC for cause, stating:

             [T]he defense would challenge [MAJ MC] on the basis of
             implied bias. Given . . . his wife’s experience with
             domestic violence. While he did state that he would not let
             that affect his judgment in this case, he did state he was

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MAYO—ARMY 20140901

             sensitive to it, that his wife would still be emotional about
             that particular aspect of her previous relationship and it’s
             asking too much.

       As we explain below, although the challenge was one only of implied bias, the
defense counsel’s argument raised both actual bias and implied bias. When MAJ
MC stated he was sensitive to issues of domestic violence, this comment raised more
the issue of actual bias. When MAJ MC explained his wife’s prior experience
regarding domestic violence, it raised more the issue of implied bias. The
government objected to the challenge. The military judge properly considered the
challenge as raising both actual and implied bias. “[A] challenge for cause . . .
encompasses both actual and implied bias” as they are “separate legal tests, not
separate grounds for challenge.” United States v. Armstrong, 54 M.J. 51, 53
(C.A.A.F. 2000). 5 The military judge denied the challenge for cause as follows:

             Now I’ve considered the challenge for cause on the basis
             of both actual and implied bias and the mandate to
             liberally grant defense challenges. That challenge is
             denied because of the reasons stated by the government
             and I’ll also note that having observed MAJ [MC’s]
             demeanor he was very emphatic that the issues in his
             wife’s life that occurred in the 1990s would not affect him
             in this case. He was very open to the idea that domestic
             violence issues can be caused by either party and I
             interpreted that to mean gender. And very emphatic that
             he would only judge this case on the basis of the facts
             presented in this case. The fact that his wife would
             become sensitive to a domestic violence or sensitive and
             emotional if her domestic violence case was raised to her,


5
  As discussed above, the CAAF’s recent decision in Dockery appears to contradict
this holding in Armstrong but without specifically overruling it. In Dockery, the
challenge for cause was only based on actual bias but the military judge granted the
challenge for implied bias. Dockery, 75 M.J. at *7. The Dockery court repeatedly
described this as a sua sponte removal of a member and perhaps implied the military
judge was not required to consider the challenge for implied bias. Id. at *2 and *9.
Under Armstrong, presented with a challenge for cause, the military judge would be
required to consider a challenge for cause for both actual and implied bias, and the
removal for cause would not be sua sponte. However, in any event, resolving the
assigned error in this case does not turn on interpreting Armstrong in light of
Dockery. As the military judge here considered the challenge as raising both actual
and implied bias, whether it was required or discretionary consideration of both
actual and implied bias is of no importance.

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MAYO—ARMY 20140901

             it really has no impact on Major MC. He was very clear
             that he can decide this case fairly and impartially and that
             this issue won’t affect him. So that challenge is denied.

      As the test for implied bias and actual bias is substantially different—they are
“separate legal tests” under Armstrong—on appeal we will attempt to parse the facts
and law and address them separately.

       Our superior court recently reiterated 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.” Dockery, 75 M.J. at *18 n.6
(C.A.A.F. 2017) (citing Clay, 64 M.J. at 277).

        On appeal, appellant conflates the issues of actual and implied bias and argues
MAJ MC’s statement he is “very sensitive” to domestic violence is the basis for an
implied bias challenge. Based on our understanding of the CAAF’s case law on the
matter, we disagree. We see the implied bias test as looking at how “most people”
(i.e., an objective member of the public) would view the bias of someone in MAJ
MC’s shoes, “regardless” of MAJ MC’s claims about how he actually feels. That is
the difference between a test for actual bias and implied bias. Under appellant’s
view, the subjective impressions of a panel member could alone be the basis for an
implied bias challenge. This view ignores the clear guidance the implied bias test
looks from the perspective of an objective member of the public without regard to
the personal feelings of the member, and the CAAF’s requirement when “there is no
finding of actual bias, implied bias must be independently established.” Clay, 64
M.J. at 277. Moreover, under appellant’s reasoning any test for actual bias would
always be subsumed by the test for implied bias.

      With that framework established, we understand the questions before for us on
appeal to be as follows:

                           i. Is Major MC Actually Biased?

       Major MC’s statement he is “very sensitive” to issues of domestic violence
raises the issue of actual bias. That is, is MAJ MC actually biased against persons
accused of domestic violence? In reviewing questions of actual bias on appeal we
are required to give deference to the military judge’s assessment of MAJ MC’s
fitness and candor. United States v. Briggs, 64 M.J. 285, 286 (C.A.A.F. 2007)
(“Because a challenge based on actual bias is essentially one of credibility, and
because the military judge has an opportunity to observe the demeanor of court
members and assess their credibility on voir dire, a military judge's ruling on actual
bias is afforded deference) (internal citations and quotations omitted).



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       “[A] member is not per se disqualified because [the member] or a close
relative has been a victim of a similar crime.” United States v. Daulton, 45 M.J.
212, 217 (C.A.A.F. 1996) (citations omitted). Affording the military judge the
deference due, and noting his specific findings regarding MAJ MC’s demeanor, we
find that the military judge did not abuse his discretion in finding no actual bias on
the part of MAJ MC. 6

                          ii. Is Major MC Impliedly Biased?

       Major MC’s statement his wife was “pushed around” a “couple of times” by
her ex-husband in the mid-1990s also raises the question of implied bias. That is,
“regardless of an individual member's disclaimer of bias,” would an objective
member of the public find that “most people in the same position would be
prejudiced [that is, biased].” United States v. Briggs, 64 M.J. 285 (CAAF 2007); see
also United States v. Napolitano, 53 M.J. 162, 167 (C.A.A.F. 2000). Here, we look
less at MAJ MC’s statements and focus on how a member of the general public
would objectively perceive MAJ MC’s statements. “The test for implied bias in the
military has considered the public’s perception of fairness since the earliest days [of
the Court of Military Appeals.]” Woods, 74 M.J. at 243. “The question before us,
therefore, is ‘whether the risk that the public will perceive that the accused received
something less than a court of fair, impartial members is too high.’” Id. at 243-44
(internal citations omitted).

       Again, we do not find that the military judge abused his discretion. An
objective member of the public is unlikely to question the fitness of a panel member
because, well over a decade ago, his wife was “pushed” around a “couple” of times
by her then husband. In Terry, a panel member’s participation in a rape trial did not
create implied bias, despite that member’s spouse having been sexually assaulted “at
least ten, and perhaps as many as twenty years” before the court-martial. 64 M.J. at
304. While we find that the military judge’s ruling is likely due some deference
under our superior court’s sliding scale standard of review for issues of implied bias,
it does not much matter. The passage of time and the dissimilarities in the degree of
violence both weigh heavily against finding any implied bias. Major MC did not
personally witness any domestic violence, the instances of domestic violence were


6
  There was little or no prior history of domestic violence between appellant and
SGT KW. In objecting to the challenge, the trial counsel proffered as much to the
military judge. Except for the trial counsel’s rehabilitation efforts, no one
developed at trial what MAJ MC meant when he said he was very sensitive to
domestic violence. If he meant only that he thinks domestic violence is wrong, such
a view would unlikely be a basis for challenge under either actual or implied bias.
And, since murder was the case at bar, it is likely every panel member was, in that
sense, sensitive to the issue of murder.

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MAYO—ARMY 20140901

very remote in time, and the conduct in question was “pushing” rather than being
strangled or suffocated to death. On top of these facts, and to the extent we may
consider it, we have the military judge’s specific findings on MAJ MC’s demeanor
in answering questions. 7

                              B. Non-unanimous Panel

      Appellant assigns as error his rights under the Fifth, Sixth, and Eighth
Amendments were violated when he was convicted and sentenced to life without the
possibility of parole by a court-martial panel that was not obligated to return a
unanimous verdict. Appellant dutifully noted contrary case law.

       The decision to allow non-unanimous verdicts was a policy decision made by
Congress during the crafting of the UCMJ. In those post-World War II years a
preeminent concern was the danger posed by unlawful command influence. See
House Armed Services Committee Report, H.R. Doc. No. 491, 81st Cong., 1st
Session (1949) at 606 (statement of Prof. Edmund M. Morgan). A requirement for a
unanimous panel decision, while having obvious advantages in truth-determination,
would also undercut several protections against unlawful command influence that
exist under current military justice practice. As these may be non-obvious
considerations, we address them briefly.

7
  In Woods, the court clarified what had long been a somewhat open question: when
determining a question of implied bias may a military judge consider the panel
member’s demeanor when answering questions. 74 M.J. at 243. Put differently,
when considering a question of implied bias, is the objective test conducted from the
viewpoint of a hypothetical member of the public sitting in the gallery (and seeing
and hearing the panel member)? Or, is the objective member of the public reading a
cold transcript? If the former, the member of the public has the same information as
the military judge and the military judge’s assessment of demeanor may, on the
margin, make the difference between granting and denying the challenge for implied
bias. If the latter, the military judge’s assessment of demeanor is likely irrelevant.
The CAAF appears to have answered this question when it stated that “resolving
claims of implied bias involves questions of fact and demeanor, not just law.” Id.
(emphasis added); see also United States v. Hines, 75 M.J. 734 (Army Ct. Crim.
App. 2016). In this regard, the military judge ruled consistently on defense
challenges. With regards to appellant’s challenge for cause of Lieutenant Colonel
(LTC) CK, the panel member’s demeanor caused the military judge to grant the
defense challenge for bias. Specifically, the defense argued LTC CK expected the
defense to tell their side of the story and “would make the proceedings when looked
from the outside in look unfair and impartial.” The military judge’s assessment of
LTC CK’s demeanor (that he was too emphatic) caused him to grant the defense’s
challenge.

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MAYO—ARMY 20140901

       First, a requirement for a unanimous panel verdict would necessarily require
the public disclosure of each panel member’s vote. Panel members are not
anonymous; most obviously to the convening authority who detailed them to the
court-martial. Currently, regardless of the verdict, an individual panel member’s
vote cannot be determined. 8 The non-unanimous vote allows a panel member to cast
what they might perceive to be an unpopular vote. In a system of unanimous panel
verdicts, each panel member’s superior, subordinate, and peer would know exactly
how each panel member voted in each case. Consider the current oath taken by a
panel member requires them not to divulge the vote or opinion of any member—an
oath which would become pointless when the unanimous verdict is read in open
court. See R.C.M. 807(b)(2) discussion.

       Second, unanimous verdicts in the civilian system require repeated voting
until a unanimous decision is reached or the jury is “hung.” Currently, absent the
relatively rare request to reconsider a finding, a panel member’s formal vote is
conducted by a single secret written ballot. By contrast, unanimity requires re-
voting and—when there is sharp disagreement between two panel members—one
panel member’s views usually must yield to the other. When deliberations must
continue until there is unanimity, secret ballots would only frustrate the goal of
deliberating until all panel members are in agreement. As a result, a requirement to
keep deliberating until all members agree poses special concerns when one panel
member outranks the other.

       Military life and custom may condition a panel member to be wary of
questioning the reasoning of senior members, or a senior panel member may be
unaccustomed to having his or her reasoning or decisions questioned. It is unlikely
that the lessons learned during a lifetime of service in a rigid hierarchical system
can always be briefly suspended during deliberations. The current practice of a
single secret written ballot, collected and counted by the junior member of the panel,
allows a panel member to more freely vote his or her conscience. By contrast,
unanimity requires continued debate until all agree. While we might presume that
panel members could deliberate a case fairly without the influence of rank or
position in most cases, such deliberations would proceed without the current
protections provided by single a secret written ballot. See Dep’t of Army,



8
 The only exception is when, in a capital case, the panel convicts the accused and
when the panel sentences such an accused to death. UCMJ art. 25a; UCMJ art. 52.
In this one instance, the required unanimity requires the effective public disclosure
of every panel member’s vote. However, a panel member’s vote against conviction
or a death sentence cannot be determined. If the public disclosure of a panel
member’s unanimous vote causes hesitation in casting a vote in favor of death, that
hesitation can only inure to the benefit of the capital defendant.

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Pam. 27-9, Legal Services: Military Judges’ Benchbook [hereinafter Benchbook],
para. 2-5-14 (10 Sept. 2014)

       In short, current practice helps reduce the possibility of impermissible
influences on panel members both inside and outside the deliberation room. These
pernicious concerns of improper influence will be most acutely felt when the case
involves high stakes, when the case involves infamous acts, or when the
personalities involved are less likely to yield to prophylactic instructions. That is,
concerns of improper influence are most likely to be a problem in the most
problematic of circumstances.

       Weighing the costs and benefits of unanimous or non-unanimous verdicts is a
policy decision vested in the Congress. The Congress is specifically empowered to
regulate the “land and naval forces.” U.S. Const. art. I, § 8, cl. 14. Any change to
the voting requirements contained in Article 52, UCMJ, will likely have to originate
with that branch of government. If anything, the Congress’s recent amendment to
Article 52, UCMJ, (requiring three-fourths instead of two-thirds to convict) is a
recent reaffirmation of the military practice of non-unanimous verdicts. National
Defense Authorization Act of Fiscal Year 2017, Pub. L. No. 114-328, § 5235 (2016)
(amending UCMJ art. 52). Ultimately, however, the requirement for non-unanimous
verdicts in the military justice system is long-standing and well-settled law which
we are obligated to follow. See e.g. United States v. Loving, 41 M.J. 213, 287
(C.A.A.F. 1994) cert. denied 562 U.S. 827 (2010).

                                   CONCLUSION

      Finding no error, we AFFIRM the findings of guilty and sentence.

      Chief Judge RISCH and Judge FEBBO concur.

                                        FOR THE
                                        FOR THE COURT:
                                                COURT:




                                        MALCOLM
                                        MALCOLM H.  H. SQUIRES,
                                                       SQUIRES, JR.
                                                                JR.
                                        Clerk of Court
                                        Clerk of Court




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