                        UNITED STATES, Appellee

                                    v.

            Marshand A. WOODS, Lieutenant Junior Grade
                       U.S. Navy, Appellant

                              No. 14-0783

                       Crim. App. No. 201300153

       United States Court of Appeals for the Armed Forces

                       Argued February 25, 2015

                        Decided June 18, 2015

BAKER, C.J., delivered the opinion of the Court, in which
ERDMANN, RYAN, and OHLSON, JJ., joined. STUCKY, J., filed a
separate opinion concurring in the result.

                                 Counsel

For Appellant: Lieutenant Gabriel K. Bradley, JAGC, USN
(argued); Lieutenant David W. Warning, JAGC, USN (on brief).

For Appellee: Lieutenant Ann E. Dingle, JAGC, USN (argued);
Brian K. Keller, Esq. (on brief); Lieutenant Commander Keith
Lofland, JAGC, USN.

Military Judge:   Marcus Fulton



       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Woods, No. 14/0783/NA


     BAKER, Chief Judge, delivered the opinion of the Court.

     Contrary to his pleas, a general court-martial composed of

officer members convicted Appellant of aggravated sexual

assault, in violation of Article 120, Uniform Code of Military

Justice (UCMJ), 10 U.S.C. § 920 (2012).       He was sentenced to

confinement for five months, forfeiture of all pay and

allowances, and dismissal.    The convening authority approved the

sentence as adjudged, and suspended forfeitures for a period of

three months.   The United States Navy-Marine Corps Court of

Criminal Appeals (CCA) affirmed.       United States v. Woods, No.

NMCCA 2013000153 (N-M. Ct. Crim. App. June 26, 2014).      On

Appellant’s petition, we granted review of the following issue:

     WHETHER THE MILITARY JUDGE ERRED BY DENYING A
     CHALLENGE FOR CAUSE AGAINST THE COURT-MARTIAL
     PRESIDENT, WHO SAID THE “GUILTY UNTIL PROVEN INNOCENT”
     STANDARD IS “ESSENTIAL” TO THE MILITARY’S MISSION.

     In the military justice system, panel members are chosen by

the same individual -- the convening authority -- who decides

whether to bring criminal charges forward to trial.      Article 25,

UCMJ, 10 U.S.C. 825 (2012).   In this case, the convening

authority selected Captain (CAPT) Martha Villalobos as the

senior member of the panel that would try Appellant for sexual

assault, despite having access to her preliminary member’s

questionnaire, in which CAPT Villalobos stated her belief that

“enforcement of ‘you are guilty until proven innocent’ (just the

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United States v. Woods, No. 14/0783/NA


opposite as in the civilian sector) is essential because the

military needs to be held to a higher standard just for reasons

of our mission.”   During voir dire, CAPT Villalobos elaborated

on this response, but reasonable observers could interpret her

responses as confusing rather than clarifying her views.   After

voir dire, the military judge denied trial defense counsel’s

motion to strike CAPT Villalobos for cause.   Given the specific

facts of this case and the unique structure of the military

justice system, a reasonable member of the public might well

question the fairness of including CAPT Villalobos on the panel.

United States v. Peters, 74 M.J. 31, 36 (C.A.A.F. 2015).     As a

result, we reverse on the ground of implied bias.

                            BACKGROUND

     On October 5, 2012, in advance of Appellant’s trial, CAPT

Villalobos completed a court-martial member questionnaire.    In

response to an open-ended question regarding her view of the

military justice system, CAPT Villalobos provided the response

at issue in this appeal:

     [Q.] What is your opinion of the military’s criminal
     justice system?

     [A.] There is not [a] perfect system, and I understand why
     the enforcement of ‘you are guilty until proven innocent’
     (just the opposite as in the civilian sector) is essential
     because the military needs to be held to a higher standard
     just for reasons of our mission. It is a voluntary force
     and you come into the service knowing that you will be held
     to this higher standard[] and give up your civil rights.

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United States v. Woods, No. 14/0783/NA


     On December 11, 2012, the convening authority relieved the

panel members previously detailed to Appellant’s court-martial,

and assigned a new panel.   CAPT Villalobos was detailed as the

panel’s senior member.    The record does not reflect whether the

convening authority reviewed CAPT Villalobos’s questionnaire,

but the parties agree that (1) the purpose of the questionnaire

was to assess a prospective member’s suitability; and (2) the

questionnaire was available for review.

     During voir dire, trial counsel addressed CAPT Villalobos’s

questionnaire response as follows:

     ATC: Okay. Now in terms of the standard for finding guilt
     in a court-martial, you had indicated that the enforcement
     of “You are guilty until proven innocent is essential in
     the military.” Now you heard the military judge talk a
     little bit today. If he advises you that the standard for
     proof is that Lieutenant (JG) Woods is, in fact, innocent
     until proven guilty, and he’s innocent as he sits here
     right now and that it’s the government’s burden to prove
     guilt beyond a reasonable doubt, could you follow the
     judge’s instruction on that?

     MBR:   (CAPT Villalobos):   Yes.

     ATC: Okay. And would you also be able to follow the
     instruction that the burden of proof never shifts to the
     accused. The government always retains the burden to prove
     guilt.

     MBR:   Yes.

     Trial defense counsel then explored CAPT Villalobos’s

questionnaire response:


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United States v. Woods, No. 14/0783/NA


     ADC: You state that the -- you understand why in the
     military the enforcement of “You are guilty until proven
     innocent. Just the opposite [as] in the civilian sector is
     essential, because the military needs to be held to a
     higher standard.” What did you mean by that?

     MBR: Well, I mean I guess just the discussions that I’ve
     had with my husband. He’s in the Army, Special Forces, and
     you know, this is, you know, we’ve talked about the
     military system and how we are held to a higher standard
     and never being -- I’ve never dealt officially in a court-
     martial, and have been told “No, this isn’t the way it
     works,” and so I understand the rules of the game, and I,
     you know, I don’t have a problem following them. What I
     meant by that is yes, us military think we should be held
     to a higher standard since our behavior, because you know,
     we raise our hand, and we are defending our country.

     ADC: Is that what you meant when you mentioned that we
     give up our civil rights?

     MBR:   Right.

     ADC: Okay. So do you believe that because Lieutenant (JG)
     Woods is a service member, he has given up his civil
     rights?

     MBR: Well, no, because he -- I mean obviously he hasn’t,
     because we’re here on his behalf, so that we can hear the
     testimony and find out if he, you know, if he’s guilty or
     not.

     ADC: Okay. I guess my question is do you hold him to a
     higher standard, because we’re in a military court than you
     would if we were in a civilian court?

     MBR: Well, I -- so do I think we should be held to a
     higher standard as when we put the uniform on and as we
     behave and as we go about our business, we should be held
     to a higher standard.


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United States v. Woods, No. 14/0783/NA


     ADC:   Okay.

     MBR: Once you are in a court of -- you know, in a court, a
     court of law is, you know, then it’s up to the parties to
     -- to them to find him -- to present a case so that we were
     presented with the facts and see if he’s guilty or not.

     ADC: Okay. If the case were close, would you give me more
     -- would you, you know, aid on the side of the government,
     because he’s in the uniform, and we should hold him to a
     higher standard? Does that make sense?

     MBR: Well, it’s hard for me to say if I’m in that
     position. I think it depends on the facts that are
     presented, like, you know, if that -- I mean the facts are
     -- and if they have a case presented to -- in a way that
     yes, they prove he’s guilty, that he’s guilty, you know? I
     mean I don’t know if -- I’m not sure what you’re asking me.

     ADC: And that’s what I’m trying to find out, ma’am. I’m
     just trying to figure out when you mention that you
     automatically hold him to a higher standard, because he’s
     in the military now. I’m just trying to figure out if the
     defense is already climbing the hill, because he’s in the
     military, and you know, we’re going to have to go even
     further than that to get a not guilty verdict.

     MBR: I don’t know what happened. I don’t know any of the
     facts. You know, maybe -- I mean I have no idea. I
     haven’t heard the case, you know. If I see Mr. Smokatellie
     and Petty Officer Smokatellie out in the town, I expect
     that Petty Officer Smokatellie to a higher standard [sic]
     and not get drunk and not act like this or that, you know.
     That’s what I’m talking about as far as like we’re held to
     a higher standard.

     . . . .

     ADC: And then finally the last -- one of the last
     questions on the supplemental questionnaire asked “Do you
     believe the defense has to prove Lieutenant (JG) Woods’

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United States v. Woods, No. 14/0783/NA


     innocence,” and you say “No, I believe the defense is there
     to establish reasonable doubt.” Do you mean that we don’t
     have to do anything or do you think that we actually have
     to proactively try to establish reasonable doubt in the
     case?

     MBR:   I think it’s on them to prove if he’s guilty or not.

     ADC: Okay.      So the burden rests solely with the
     government?

     MBR:   Yes.

The military judge then questioned CAPT Villalobos:

     MJ: Okay. Captain, going back to your answer to question
     20, it appears that you, in fact, arrived at this court-
     martial with an erroneous understanding of the burden of
     proof in this case.

     MBR:   Right.

     MJ:    Is that fair to say?

     MBR:   Yes.

     MJ: Okay. And your answer also tends to indicate that you
     might think that there would be a good reason for the
     military to operate under a system like the one that you
     presumed that we did.

     MBR:   Um-huh.

     MJ: I want to make sure in my own mind and for the record
     that you understand that the burden of proof in this case
     is on the government, that it never shifts to the defense.

     MBR:   Right.    I understand that.




                                   7
United States v. Woods, No. 14/0783/NA


     MJ: And that the obligation for a conviction in this case
     is that the government must prove their case beyond a
     reasonable doubt. Do you understand that?

     MBR:   Yes.

     MJ:    Are you completely comfortable with that?

     MBR:   Yes.

     MJ: You don’t have any reservations in your own mind about
     following that instruction when I give it to you?

     MBR:   I don’t have any reservations.

     After voir dire, the defense challenged eight members for

cause, including CAPT Villalobos.     The military judge granted

six of the defense’s challenges, but denied the challenges as to

CAPT Villalobos and another panel member.    As to CAPT

Villalobos, the military judge reasoned as follows:

     MJ: With respect to Captain Villalobos, I have
     specifically considered the liberal grant mandate and
     examined her answers for actual bias as well as implied
     bias. I am going to focus here for a minute on her answers
     to the member’s questionnaire pertaining to what the
     relevant burden of proof is in a court-martial. It’s
     absolutely the case that she did arrive at this court-
     martial under a misapprehension of what the burden of proof
     is at a court-martial. I don’t find that to be
     disqualifying. I evaluated her demeanor as she answered
     questions. When I asked her candidly “Did you -- were you
     under the impression that that was the relevant standard in
     these cases,” and she says “Yes,” and she acknowledged that
     that was a misapprehension on her part.

     I asked her if she had any mental reservations at all about
     applying “the guilt beyond a reasonable doubt standard,”


                                  8
United States v. Woods, No. 14/0783/NA


     and upon evaluating her credibility I found her to be
     credible when she said that she would have no mental
     reservations about applying the relevant standard. If the
     relevant standard here were that she, you know, know what
     the correct standards are before she gets into court in
     order to be qualified, then that would be a problem, but
     I’m convinced that she is capable of following the
     instructions of the court and that she’s ready and willing
     to do so. I disagree with the defense counsel’s assessment
     about her comments relating to holding people in uniform to
     a higher standard. I did not find that they were related
     to burdens of proof or the allocation of burdens of proof
     in courts-martial or civilian trials. I think in the full
     context of her answers she -- it was clear that she was
     discussing expectations of officers and Petty Officers and
     members of the service generally, so bearing in mind the
     liberal grant mandate and actual or implied bias, I find
     that she is capable of sitting fairly as a member in this
     case.

Trial defense counsel then moved for reconsideration, and the

military judge expanded on his reasoning:

     MJ: Well, if the member’s questionnaire were a civics
     quiz, I’d be more inclined to see things your way. I have
     to say that one of the things that impressed me the most
     about Captain Villalobos as I was thinking about your
     motion to excuse her was her temperament. I observed her
     temperament here in court to be quite moderate and
     judicious actually, and she seemed to acknowledge, first of
     all, that her initial understanding about the allocation of
     burdens of proof in a court-martial was erroneous. That
     wasn’t something that seemed she seemed to be too startled
     by, the fact that she had gotten that wrong on the initial
     questionnaire. When I explained the error in her
     understanding to her, she seemed to readily accept the fact
     that she was wrong about that and to readily express an
     unreserved willingness to consider this case in accordance
     with my instructions including those concerning the burden
     of proof, and so even though she was incorrect initially
     about a -- what’s, you know, a technical legal matter, I

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United States v. Woods, No. 14/0783/NA


     was impressed with her temperament and her ability to be
     thoughtful about what would be required of her, and I was
     convinced by her demeanor in court during my questioning
     and the questioning of counsel that she was more than up to
     the task of listening to the evidence in this case and
     applying the law as I give it to her, and I’m going to
     continue to adhere to my decision that she’s an appropriate
     member in this case. I don’t understand your objection to
     be a member selection motion. I understand it just to be
     in terms of Captain Villalobos. The method that you
     describe for member selection is the one approved by the
     Court of Appeals for the Armed Forces where subordinates
     nominate members, and they complete these questionnaires
     and the Article 25(d) guidance is given to the convening
     authority. He selects members based, not just on judicial
     temperament but on the age, experience, length of service,
     education, training, as well as judicial temperament, and I
     don’t see anything at this point that would shake my
     confidence that the convening authority has appropriately
     performed his Article 25(d) responsibilities.

     . . . .

     There’s no doubt but that she did arrive at the court-
     martial with a misapprehension about, you know, what the
     law is at a court-martial. In my mind, that’s not
     disqualifying. The fact that, you know, she arrived with
     that misperception, it[] simply doesn’t convince me that
     there was an error in member selection. I’ll add that I
     don’t find it to be evidence of unlawful command influence.
     You know, I think it’s just evidence that this dentist
     didn’t know what the law was, so I’m convinced that she’s
     going to fairly apply the law as I give it to her, and
     that’s why I have elected to retain her on the panel.

     After challenges for cause, the panel fell below quorum and

was reconstituted with additional members.   The final five-

member panel consisted of CAPT Villalobos, two commanders, one

lieutenant commander, and one lieutenant.    Under Article 52,

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United States v. Woods, No. 14/0783/NA


UCMJ, four of the five members were required to vote “guilty” in

order to convict Appellant.    Article 52(a)(2), UCMJ, 10 U.S.C. §

852(a)(2) (2012).

                              DISCUSSION

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

reviewed for an abuse of discretion.       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.”      United States

v. Downing, 56 M.J. 419, 422 (C.A.A.F. 2002) (citations

omitted).1




1
 The parties contend that we should alter our standard of review
and consider implied bias claims under a de novo standard,
citing Article III case law. See, e.g., Fields v. Brown, 503
F.3d 755, 770 (9th Cir. 2007); Caterpillar Inc. v. Sturman
Industries, Inc., 387 F.3d 1358, 1367 (Fed. Cir. 2004); Skaggs
v. Otis Elevator Co., 164 F.3d 511, 517 (10th Cir. 1996). There
is no general consensus regarding the appropriate standard of
review, however, and some jurisdictions apply an abuse of
discretion standard on direct review of implied bias claims
arising in criminal cases. E.g., State v. Wacht, 833 N.W.2d
455, 463–64 (N.D. 2013); People v. Furey, 961 N.E.2d 668, 670
(N.Y. 2011). We decline to amend our standard of review,
because we believe it affords an appropriate level of deference
to the military judge in light of the fact that resolving claims
of implied bias involves questions of fact and demeanor, not
just law.
                                  11
United States v. Woods, No. 14/0783/NA


     Appellant first contends that CAPT Villalobos’s

questionnaire response, combined with her responses in voir

dire, amount to actual bias.    “Actual bias is personal bias that

will not yield to the military judge’s instructions and the

evidence presented at trial.”   United States v. Nash, 71 M.J.

83, 88 (C.A.A.F. 2012) (citation omitted).   We decline to find

actual bias in the context of this case, where the military

judge concluded that CAPT Villalobos credibly expressed her

intention to follow his instructions despite her initial

mistaken belief as to the burden of proof employed by the

military justice system.   See United States v. Quintero-Barraza,

78 F.3d 1344, 1350 (9th Cir. 1995) (juror’s stated belief in

“guilty until proven innocent” standard “does not immediately

translate into an unwillingness to abide by the oath one takes

as a juror”); accord Oswalt v. State, 19 N.E.3d 241, 250–51

(Ind. 2014); People v. Olinger, 680 N.E.2d 321, 335 (Ill. 1997);

State v. Thomas, 278 S.E.2d 535, 545 (N.C. Ct. App. 1981).

     Appellant’s next contention is that, by denying the

defense’s challenge and retaining CAPT Villalobos on the panel,

the military judge erred as a matter of implied bias.   We

recently summarized our implied bias case law, and reiterated

that the test for implied bias is, ultimately in the military

context, one of public perception:



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United States v. Woods, No. 14/0783/NA


     R.C.M. 912(f)(1)(N) sets the basis for an implied
     bias challenge, which stems from the “historic
     concerns about the real and perceived potential for
     command influence” in courts-martial. Unlike the
     test for actual bias, this Court looks to an
     objective standard in determining whether implied
     bias exists. The core of that objective test is the
     consideration of the public’s perception of fairness
     in having a particular member as part of the court-
     martial panel. In reaching a determination of
     whether there is implied bias, namely, a “perception
     or appearance of fairness of the military justice
     system,” the totality of the circumstances should be
     considered.

Peters, 74 M.J. at 34 (citations omitted).   The test for implied

bias in the military has considered the public’s perception of

fairness since the earliest days of this Court.   See United

States v. Deain, 5 C.M.A. 44, 53, 17 C.M.R. 44, 53 (1954)

(addressing the perception of “disinterested observers”

regarding the panel’s composition); see also id. (“[A]n

appearance of evil must be avoided as much as the evil itself.”

(citing United States v. Walters, 4 C.M.A. 617, 16 C.M.R. 191

(1954))).   The test takes into account, among other distinct

military factors, the confidence appellate courts have that

military members will follow the instructions of military judges

and thus, while it will often be possible to “rehabilitate” a

member on a possible question of actual bias, questions

regarding the appearance of fairness may nonetheless remain.




                                13
United States v. Woods, No. 14/0783/NA


     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.’”   United States v. Bagstad, 68 M.J. 460, 462 (C.A.A.F.

2010) (quoting United States v. Townsend, 65 M.J. 460, 463

(C.A.A.F. 2008)).    To answer this question, we review the

totality of the circumstances, and assume the public to be

familiar with the unique structure of the military justice

system.   Id.    In the context of this case, we conclude that

there is “too high a risk” that the public would question the

fairness of Appellant’s trial.      United States v. Wiesen, 56 M.J.

172, 176 (C.A.A.F. 2001).

     We do not reach this conclusion through the application of

a per se rule.    See id. at 175.    Specifically, we do not

conclude that a panel member’s mistake as to the proper burden

of proof in a criminal trial, without more, necessarily requires

a finding of implied bias.    Cf. Quintero-Barraza, 78 F.3d at

1350 (noting the possibility that a juror holding such a belief

may nonetheless “faithfully apply the law”).     The specific

circumstances of this case arising in the military justice

system, however, compel such a finding.

     First, the convening authority had access to CAPT

Villalobos’s questionnaire for over two months before she was

detailed to the court-martial, and the Government concedes that

                                    14
United States v. Woods, No. 14/0783/NA


the convening authority had at least constructive knowledge of

her questionnaire responses.   Under the UCMJ, the convening

authority is charged to select members who “in his opinion, are

best qualified for the duty by reason of age, education,

training, experience, length of service, and judicial

temperament.”   Article 25(d)(2), UCMJ.   Notwithstanding these

criteria, he selected CAPT Villalobos to be detailed as the

senior member of the panel.2

     Second, CAPT Villalobos’s questionnaire reflected a

mistaken belief as to the burden of proof to be employed in

courts-martial, and reasonable observers may disagree on whether

her voir dire responses, reproduced above, convincingly

demonstrated a departure from that view in light of her

statements about “giv[ing] up your civil rights” and applying a

“higher standard” in the military and/or military courts.   The

notion that criminal defendants are innocent until proven guilty

is at the core of our judicial system, and “the practice which

flowed from it has existed in the common law from the earliest


2
 We recognize that Appellant does not present a claim of
improper member selection under Article 25, UCMJ, and we do not
sua sponte raise the issue. This Court considers “the totality
of the circumstances” in reviewing claims of implied bias.
Peters, 74 M.J. at 34. In the military context, the test for
implied bias “stems from ‘historic concerns about the real and
perceived potential for [unlawful] command influence in courts-
martial.’” Id. Thus, the convening authority’s selection of
CAPT Villalobos as the senior member of the panel under Article
25, UCMJ, is part of Appellant’s implied bias claim.
                                15
United States v. Woods, No. 14/0783/NA


time.”   Coffin v. United States, 156 U.S. 435, 455 (1895).

Members are not and should not be charged with independent

knowledge of the law.   This is not just any principle of law,

however; it is one of the fundamental tenets of U.S. criminal

law that predates the founding of the republic.    See James Q.

Whitman, The Origins of “Reasonable Doubt,” Yale Law School

Faculty Scholarship Series, Mar. 2005, at 7 (“‘[I]f you doubt of

the prisoner’s guilt, never declare him guilty; that is always

the rule’” (quoting John Adams who served as defense counsel to

British soldiers accused in the 1770 Boston Massacre trials)).

Moreover, as Appellant asserts, CAPT Villalobos understood the

burden of proof generally applied in criminal trials, and

believed that the military had good reason to operate under the

opposite framework.

     Finally, the military judge did not view CAPT Villalobos’s

questionnaire response and voir dire as representing a close

case, but rather credited her temperament and demeanor in

denying the challenge for cause.     The military judge also noted

that CAPT Villalobos’s statement that military members “give up

their civil rights” was not incorrect, because Appellant has

“given up the right to trial by members or by a civilian jury, a

unanimous verdict.”   Ultimately, the military judge concluded

that CAPT Villalobos’s mistaken belief as to the burden of proof

in criminal law related to “a technical legal matter.”    In our

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United States v. Woods, No. 14/0783/NA


view, this analysis could impact the public’s perception of

fairness.    An informed member of the public might well, ask why,

absent any operational military necessity, the military judge

retained CAPT Villalobos as the senior member of this five-

member panel.

                             CONCLUSION

     “[I]f after weighing the arguments for the implied bias

challenge the military judge finds it a close question, the

challenge should be granted.”   Peters, 74 M.J. at 34.     In view

of the considerations raised above, we believe the defense

challenge to CAPT Villalobos’s participation on the panel

presented, at minimum, a close question.     Thus, particularly in

view of the liberal grant mandate, the military judge erred in

denying the defense challenge for cause on grounds of implied

bias, and that error prejudiced Appellant’s substantial rights.

Article 59(a), UCMJ.

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is reversed.      The findings and sentence are

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

Advocate General of the Navy.   A rehearing is authorized.




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United States v. Woods, No. 14-0783/NA


     STUCKY, Judge (concurring in the result):

     I concur in the result -- the military judge erred in not

granting the defense challenge for cause against Captain

Villalobos.   I disagree with the majority’s conclusion that this

is a case of implied bias.

     Federal courts generally recognize two forms of bias that

make a juror subject to a challenge for cause:   “actual or

implied; that is, it may be bias in fact or bias conclusively

presumed as matter of law.”   United States v. Wood, 299 U.S.

123, 133 (1936).   Actual bias and implied bias are legal terms

of art.   Contrary to much of this Court’s jurisprudence, see,

e.g., United States v. Armstrong, 54 M.J. 51, 53 (C.A.A.F.

2000), actual bias and implied bias are separate grounds for

challenge, not just separate tests.

     Actual bias is defined as “bias in fact.”   Wood, 299 U.S.

at 133.   It is “the existence of a state of mind that leads to

an inference that the person will not act with entire

impartiality.”   Fields v. Brown, 503 F.3d 755, 767 (9th Cir.

2007) (quotation marks and citation omitted); see Black’s Law

Dictionary 192 (10th ed. 2014) (“Genuine prejudice that a . . .

juror . . . has against some person or relevant subject.”).

     Implied bias, on the other hand, is “bias conclusively

presumed as [a] matter of law.”   Wood, 299 U.S. at 133.   It is

“bias attributable in law to the prospective juror regardless of
United States v. Woods, No. 14-0783/NA


actual partiality.”   Id. at 134 (emphasis added); see Black’s

Law Dictionary, supra, at 192 (“Bias, as of a juror, that the

law conclusively presumes because of kinship or some other

incurably close relationship; prejudice that is inferred from

the experiences or relationships of a . . . juror . . . .”).

For example, the law conclusively presumes that the person who

forwarded the charges with a personal recommendation as to their

disposition is biased, without determining whether she is

actually biased.   See Rule for Courts-Martial (R.C.M.)

912(f)(1)(I).   Implied bias is not the majority’s ambiguous

concept of the public’s perception of the fairness of the

military justice system.   See United States v. Woods, __ M.J.

__, __ (13) (C.A.A.F. 2015) (citing United States v. Peters, 74

M.J. 31, 34 (C.A.A.F. 2015)).   If there is evidence from which

an inference can be drawn that the member will not be impartial,

as is the case here, or may be unlawfully influenced, that is

actual bias.

     The President has delineated fourteen grounds for

challenging court members for cause.

     A member shall be excused for cause whenever it
     appears that the member:

     (A) Is not competent to serve as a member under
     Article 25(a), (b), or (c);

     (B) Has not been properly detailed as a member of the
     court-martial;



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United States v. Woods, No. 14-0783/NA


     (C) Is an accuser as to any offense charged;

     (D) Will be a witness in the court-martial;

     (E) Has acted as counsel for any party as to any
     offense charged;

     (F) Has been an investigating officer as to any
     offense charged;

     (G) Has acted in the same case as convening authority
     or as the legal officer or staff judge advocate to the
     convening authority;

     (H) Will act in the same case as reviewing authority
     or as the legal officer or staff judge advocate to the
     reviewing authority;

     (I) Has forwarded charges in the case with a personal
     recommendation as to disposition;

     (J) Upon a rehearing or new or other trial of the
     case, was a member of the court-martial which heard
     the case before;

     (K) Is junior to the accused in grade or rank, unless
     it is established that this could not be avoided;

     (L) Is in arrest or confinement;

     (M) Has formed or expressed a definite opinion as to
     the guilt or innocence of the accused as to any
     offense charged;

     (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.

R.C.M. 912(f)(1).

     The grounds listed in (A)–(B) are statutory grounds for

disqualification.   Those listed in (C)–(L) are grounds for an

implied bias challenge:   there is no evidence that such court

members would be biased, but we conclusively presume they are


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United States v. Woods, No. 14-0783/NA


because of their status or participation in the justice process.

The grounds listed in (M) and (N) are, in essence, the

definition of actual bias -- there is evidence that such members

are not impartial or from which the military judge may infer

they would not be.

     Although Appellant argues both actual and implied bias, his

argument sounds in actual bias.   He is asserting that Captain

Villalobos’s misunderstanding of the presumption of innocence

and the burdens of proof and persuasion would compromise her

ability to decide his case impartially.    This is the very

definition of actual bias.   This is not a case of implied bias.

     Whether a prospective juror “is biased has traditionally

been determined through voir dire culminating in a finding by

the trial judge concerning the [prospective juror’s] state of

mind.”   Wainwright v. Witt, 469 U.S. 412, 428 (1985).   “[S]uch a

finding is based upon determinations of demeanor and credibility

that are peculiarly within a trial judge’s province.”    Id.      It

is “plainly [a question] of historical fact; did a juror swear

that he could set aside any opinion he might hold and decide the

case on the evidence, and should the juror’s protestation of

impartiality have been believed.”     Patton v. Yount, 467 U.S.

1025, 1036 (1984).




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United States v. Woods, No. 14-0783/NA


     An appellate court reviews a trial court’s findings of fact

for “clear error.” 1   Easley v. Cromartie, 532 U.S. 234, 242

(2001); see United States v. Olsen, 704 F.3d 1172, 1190 (9th

Cir. 2013) (ultimate determination of actual bias is reviewed

for clear error), cert. denied, 134 S. Ct. 2711 (2014); United

States v. Powell, 226 F.3d 1181, 1188 (10th Cir. 2000).

Reviewing courts “will not reverse a lower court’s finding of

fact simply because we would have decided the case differently.

Rather, a reviewing court must ask whether, on the entire

evidence, it is left with the definite and firm conviction that

a mistake has been committed.”    Cromartie, 532 U.S. at 242

(quotation marks and internal citations omitted).

     After reviewing the entire voir dire of Captain Villalobos,

I am left with the firm conviction that the military judge erred

in believing Captain Villalobos’s protestations of impartiality.

I, therefore, concur in the result.




1
  In Yount, a habeas proceeding, the Supreme Court seems to have
applied a “manifest error” test in reviewing the impartiality of
the jury as a whole. 467 U.S. at 1031.

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