UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                          Before
                          TOZZI, CAMPANELLA, and CELTNIEKS
                                 Appellate Military Judges

                             UNITED STATES, Appellee
                                         v.
                         Specialist TIMOTHY T. ROBINSON
                           United States Army, Appellant

                                     ARMY 20120993

            Headquarters, Joint Readiness Training Center and Fort Polk
                         Jeffrey R. Nance, Military Judge
     Lieutenant Colonel James A. Barkei, Acting Staff Judge Advocate (advice)
       Colonel Samuel A. Schubert, Staff Judge Advocate (recommendation)


For Appellant: Captain Patrick A. Crocker, JA (argued); Colonel Kevin Boyle, JA;
Lieutenant Colonel Peter Kageleiry, Jr., JA; Major Vincent T. Shuler, JA; Captain
Patrick A. Crocker, JA (on brief).

For Appellee: Captain Jaclyn Shea, JA (argued); Colonel John P. Carrell, JA;
Lieutenant Colonel James L. Varley, JA; Captain Daniel M. Goldberg, JA; Captain
Rachel T. Brant, JA (on brief).


                                     23 December 2014
                                 ---------------------------------
                                 MEMORANDUM OPINION
                                 ---------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

TOZZI, Senior Judge:

       A panel of officers and enlisted members sitting as a general court -martial
convicted appellant, contrary to his pleas, of one specification of aggravated sexual
assault and two specifications of adultery, in violation of Articles 120 and 134,
Uniform Code of Military Justice, 10 U.S.C. §§ 920, 934 (2006 & Supp. IV 2011),
respectively. The panel sentenced appellant to a bad-conduct discharge,
confinement for two years, forfeiture of all pay and allowances, and reduction to the
grade of E-1. The convening authority deferred automatic and adjudged forfeitures
of pay and allowances until action and ap proved the adjudged sentence.
ROBINSON—ARMY 20120993

      This case is before us for review pursuant to Article 66, UCMJ. Of
appellant’s four assignments of error, two warrant discussion. None warrant relief.
Appellant’s personal submissions made pursuant to United States v. Grostefon, 12
M.J. 431 (C.M.A. 1982) do not warrant relief.

                                   BACKGROUND

       While deployed at FOB Shank, Afghanistan, appellant sexually a ssaulted
Specialist (SPC) EB in an eight-person tent. Specialist EB was in a sleeping bag on
her bed and had just taken two sleeping aids, Remeron and Nyquil, which she
regularly used. Appellant sat on SPC EB’s bed while using her internet connection
to check emails. He slid his hand up SPC EB’s inner thigh and she slapped his hand
away. Appellant then put his knees over SPC EB’s arms and straddled her. He
kissed her on her neck and attempted to perform oral sex on her , but SPC EB pushed
his head away each time.

       Appellant removed SPC EB’s clothes and tried to place his penis in her
vagina, but SPC EB managed to get out of the bed. Specialist EB eventually
returned to her sleeping bag, when appellant mounted her again. Specialist EB told
appellant to leave. Appellant asked her why he should leave and then placed his
penis in her vagina. At the time of the sexual act, SPC EB was menstruating and had
a tampon in her vagina. She testified that she would not willingly have sexual
intercourse while using a tampon because she believed such an act would be
unsanitary. In a sworn statement to CID appellant stated EB “pushed me up before
full insertion and said we couldn’t do that.”

       Specialist MB, a colleague of SPC EB, walked into the tent during the sex ual
assault. He shined a flashlight on the bed and saw appellant on top of SPC EB as
appellant held her in a “combative,” controlling manner where she was not able to
get free. Appellant then slid off the bed and hid near the far corner of the tent walls.
Specialist EB told SPC MB that no one would believe this and that she did not think
he would believe her. On cross-examination, SPC MB admitted that SPC EB told
him that she was being held in a “combative” manner. Specialist MB initially
thought that SPC EB and appellant were “intimate” when he entered the tent.
Appellant testified at trial to having consensual sexual intercourse with EB on 21
March 2011.

                              LAW AND DISCUSSION

                      Voir Dire of Chief Warrant Officer 4 DD

      Chief Warrant Officer 4 (CW4) DD sat on appellant’s court -martial panel.
During group voir dire, the prospective panel members were asked whether, after
having seen the accused and read the charges, they believed they could not give



                                           2
ROBINSON—ARMY 20120993

appellant a fair trial. Chief Warrant Officer 4 DD answered in the negative. The
prospective panel members were also asked if anyone in their family or anyone close
to them had ever been the victim of an offense similar to those charged in this case.
Chief Warrant Officer 4 DD again answered in the negative. The prospective panel
members were also asked if they were aware of anything that might raise a
substantial question concerning whether they should participate as a court-martial
member, to which CW4 DD answered in the negative. Chief Warrant Officer 4 DD
also answered questions about how he would expect a sexual assault victim to act
after an alleged attack and agreed that every person is different and every reaction is
different. Chief Warrant Officer 4 DD said that he would not have a problem
finding the accused guilty if the only witness was the victim. Neither party
challenged CW4 DD for cause.

       In a subsequent sexual assault case where he served as a member, CW4 DD
revealed that his daughter had been sexually assaulted when she was a young child.
Upon learning of this answer, appellant requested a post-trial hearing to determine
whether his right to trial by a panel of fair and impartial members was violated and
moved for a mistrial. In that post-trial hearing, CW4 DD revealed his daughter was
the victim of sexual assault by a female babysitter when she was very young. He
could not remember how old she was or when it happened. He did remember that
the baby sitter had caused his daughter and another young male child she was also
tending to perform sexual acts on each other. He testified that the babysitter
received “a slap on the wrist” and that h e had hoped that she would at least spend
time in a juvenile detention center or face some penalty. Chief Warrant Officer 4
DD stated his daughter was now an adult and had no lasting effects from the
incident. He did say that he and his wife “almost divo rced” over the matter. 1 He did
not reveal this information when asked questions during voir dire in appellant’s case
because at that time he thought the questions were tied to the charges in appellant’s
case and he did not believe they were similar to wha t happened to his daughter.

       In his written ruling after the post-trial hearing, the military judge specifically
found that CW4 DD testified convincingly on this matter that the incident involving
his young daughter did not cross his mind when he was ask ed those questions
because he knew he owed it to both parties to be fair and was sure that he could be.
However, as the dissent correctly notes, CW4 DD testified that he considered the
offense against his daughter during voir dire, but perceived that offe nse was not
similar to the charged offenses. However, CW4 DD did specifically testify that the
offenses against his daughter did not cross his mind during trial. Only later, after
the trial, did CW4 DD think of the incident involving his d aughter and decide that he
should answer the question a little more broadly. The military judge, after
reviewing the law of actual and implied bias and the liberal grant mandate, denied

1
    However, CW4 DD stated that “in the end it made us stronger.”



                                            3
ROBINSON—ARMY 20120993

appellant’s motion for mistrial regarding CW4 DD. The military judge did not
expressly state on the record his grounds for denying appellant’s motion for mistrial
regarding CW4 DD.

        We apply the Supreme Court’s test in McDonough Power Equip. v.
Greenwood, 464 U.S. 548, 556 (1984), when analyzing claims that a panel member
failed to disclose information during voir dire: “[A] party must first demonstrate that
a juror failed to answer honestly a material question on voir dire, and then further
show that a correct response would have provided a valid basis for a challenge for
cause.” See United States v. Albaaj, 65 M.J. 167, 169-170 (C.A.A.F. 2006). Here,
we do not find that CW4 DD answered dishonestly. Appellant was charged with
adultery and various other sex offenses against an adult soldier while deployed.
Chief Warrant Officer 4 DD’s daughter was the victim of a child sex offense. He
testified he perceived the offenses were not similar. We acknowledge that
reasonable people may interpret the term “similar” in broad or narrow ways.
However, he testified that the incident involving his daughter did not cross his mind
while sitting on the panel. 2 Although he answered the question narrowly, he did not
do so dishonestly. 3

       Further, in considering the second prong of the McDonough test, we are
convinced the military judge did not err by denying appellant’s motion for mistrial
as relates to CW4 DD’s voir dire answers. “As a matter of due process, an accused
has a constitutional right, as well as a regulatory right, to a fair and impartial panel.”
United States v. Downing, 56 M.J. 419, 421 (C.A.A.F. 2002) (quoting United States
v. Wiesen, 56 MJ 172, 174 (2001)). Rule for Courts-Martial 912(f)(1)(N) requires a
panel member be excused when it is “in the interest of having the court -martial free
from substantial doubt as to legality, fairness, and impartiality.” “This rule
encompasses the excusal of panel members for both actual and implied bias. ”
United States v. Bagstad, 68 M.J. 460, 462 (C.A.A.F. 2010) (quoting United States
v. Elfayoumi, 66 M.J. 354, 356 (C.A.A.F. 2008)) (additional citation omitted).




2
 We certainly do not condone “reticence” from panel members. See United States v.
Lake, 36 M.J. 317, 323 (C.M.A. 1993). However, CW4 DD was not asked a question
about sexual assault in general. Rather, he was asked about offenses similar to the
charged offenses.
3
  Appellant argues that childhood sexual assault was “material” to the case because
the government put on evidence of SPC EB’s experiences as a child victim of sexual
assault. Even assuming that childhood sexual assault is material to the case does not
answer the altogether different question as to whether CW4 DD answered the voir
dire questions honestly.



                                            4
ROBINSON—ARMY 20120993

       “The test for actual bias is whether any bias ‘is such that it will not yield to
the evidence presented and the judge's instructions.’” United States v. Terry, 64 M.J.
295, 302 (C.A.A.F. 2007) (quoting United States v. Napoleon, 46 M.J. 279, 283
(C.A.A.F. 1997)) (other citation omitted). Challenges for actual bias are evaluated
based on the totality of the circumstances. United States v. Richardson, 61 M.J.
113, 118 (C.A.A.F. 2005) (citing United States v. Strand, 59 M.J. 455, 459
(C.A.A.F. 2004)).

       Similarly, challenges for implied bias are also evaluated based on the totality
of the circumstances. Strand, 59 M.J. at 459. Implied bias exists when, despite the
panel member’s disclaimer of actual bias, most people in the same position would
nevertheless be biased. United States v. Napolitano, 53 M.J. 162, 167 (C.A.A.F.
2000). However, when there is no actual bias, “implied bias should be invoked
rarely.” United States v. Leonard, 63 M.J. 398, 402 (C.A.A.F. 2006) (quoting
United States v. Rome, 47 M.J. 467, 469 (C.A.A.F. 1998)); see also United States v.
Clay, 64 M.J. 274, 277 (C.A.A.F. 2007) (The above “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. ”). The
test for determining implied bias is objective, “viewed through the eyes of the
public, focusing on the appearance of fairness .” Clay, 64 M.J. at 276 (quoting
Rome, 47 M.J. at 469). “The hypothetical ‘public’ is assumed to be familiar with the
military justice system.” Bagstad, 68 M.J. at 462 (citing Downing, 56 M.J. at 423).
“We focus ‘on the perception or appearance of fairness of the military justice
system.’” United States v. Schlamer, 52 M.J. 80, 93 (C.A.A.F. 1999) (quoting
United States v. Dale, 42 M.J. 384, 386 (C.A.A.F. 1995)).

       We are convinced CW4 DD was not actually biased . The military judge found
that CW4 DD testified convincingly that he owed it to the parties to be fair and was
sure that he could be fair. “A challenge for cause based on actual bias is essentially
one of credibility.” United States v. Daulton, 45 M.J. 212, 217 (C.A.A.F. 1998))
(citations and quotation marks omitted). We adopt the military judge’s factual
finding on that point.

       Turning to implied bias, we are convinced that the military judge did not err
in this determination as well. We initially note that the military judge did not state
on the record his application of the law to the facts. However, he did clearly and
accurately state the applicable law, including the liberal grant mandate. When the
military judge addresses implied bias on the record, he receives greater deference,
although one who does not still receives some deference. See United States v.
Hollings, 65 M.J. 116, 119 (C.A.A.F. 2007) (“A military judge who addresses the
concept on the record is entitled to greater deference than one who does not . . . .
However, this does not suggest that the military judge is entitled to no deference.)
(citation omitted). “We do not expect record dissertations but, rather, a clear signal
that the military judge applied the right law.” Downing, 56 M.J. at 422. We are



                                           5
ROBINSON—ARMY 20120993

convinced the military judge applied the correct law, even though he did not address
his application of it on the record.

      Just as CW4 DD’s honesty was central to resolving the first prong of the
McDonough test, it is also important in resolving our inquiry into implied bias. See
McDonough Power Equip, 464 U.S. at 672 (Blackmun, J., with whom Stevens, J. a nd
O’Connor, J. join, concurring) (“I also agree that, in most cases, the honesty or
dishonesty of a juror's response is the best initial indicator of whether the juror in
fact was impartial.”). The dissent presumes that CW4 DD gave an incorrect answer.
However, reasonable minds can disagree as to the correctness of CW4 DD’s answer.
Given this reasonable disagreement, CW4 DD’s honesty in answering the question is
an important consideration in whether he is implicitly biased.

       “[A] member is not per se disqualified because he or she or a close relative
has been a victim of a similar crime.” Daulton, 45 M.J. at 217 (citations omitted).
Here, in light of appellant’s honesty, the passage of time, the lack of lasting effects
on CW4 DD’s now-adult child, the fact that appellant’s marriage ultimately became
stronger after the incident, and the differences between adult sexual assault between
deployed soldiers compared to child sexual assault, we are convinced that the
public’s perception of the appearance of fairness would not be injured by CW4 DD
sitting in judgment of appellant. As such, appellant cannot prevail under the second
prong of McDonough either.

             The Government’s Nondisclosure of Alleged Material Evidence

        Appellant also argued that the government did not disclose material evidence,
where the trial counsel, Major (MAJ) DH, provided direct examination questions to
SPC MB and direct examination questions with prompts to SPC EB. None of those
materials were provided to defense prior to trial, despite a defense request that the
government provide “any writing or document used by a witness to prepare for
trial.” The government had responded “[a]t this time, there is no such writing that
has been used.”

       The military judge determined this nondisclosure was harmless beyond a
reasonable doubt. Specialist EB never looked at the questions MAJ DH gave her.
She lost them soon after he gave them to her. The military judge specifically found
the questions “did not assist her in preparing her testimony in any way.” The
military judge also found that failure to disclose the questions given to SPC MB was
harmless beyond a reasonable doubt. In particular, he noted that SPC MB’s
testimony helped the defense as much as it helped the government and his credibility
was not a contested question.

       We agree with the military judge that the nondisclosure was harmless beyond
a reasonable doubt. See United States v. Roberts, 59 M.J. 323, 327 (C.A.A.F. 2004)



                                           6
ROBINSON—ARMY 20120993

(applying the constitutional test for harmlessness in the context of nondisclosure of
items specifically requested by an accused). While appellant was able to attack SPC
EB’s credibility in many ways, we fail to see how he could have attacked her
credibility about a document SPC EB never looked at and lost soon after receiving it
– when that document purportedly was intended to prepare her to testify.

         Although a closer question, the nondisclosure regarding the documents
provided to SPC MB is also harmless beyond a reasonable doubt. Appellant’s cross-
examination of SPC MB elicited facts supporting his defense of consent and mistake
of fact. Put another way, appellant’s strategy for cross -examining SPC MB was not
to attack his credibility, but to elicit helpful facts from him. 4

                                   CONCLUSION

      On consideration of the entire record, the matters submitted pursuant to
Grostefon, and the assigned errors, the findings and sentence as approved by the
convening authority are AFFIRMED.

      CAMPANELLA, Judge concurs.

CELTNIEKS, Judge, concurring in part and dissenting in part:

       I agree with the majority that the trial counsel’s nondisclosure of documents
relating to witness preparation was harmless beyond a reasonable doubt. I disagree,
however, with the majority’s decision regarding Chief Warrant Officer 4 (CW4)
DD’s answers during voir dire. By failing to disclose his daughter had been sexually
assaulted, the parties were unable to explore whether CW4 DD could serve as a fair
and impartial panel member. A correct response would have provided a valid basis
for a challenge for cause. See McDonough Power Equip. v. Greenwood, 464 U.S.

4
  The military judge also entered findings regarding documents not p rovided to three
other witnesses: the sexual assault nurse examiner (SANE) who examined SPC EB,
the government’s expert witness, and the unit’s sexual assault response coordinator.
He also found – as do we – that this nondisclosure was harmless beyond a r easonable
doubt. First, the documents provided to the SANE were consistent with all other
pretrial discovery provided to defense. Second, the document provided to the
expert, in the words of the military judge, “cover the standard subject matter and
testimony of countless behavioral experts that have testified in countless trials about
counterintuitive reactions by sexual assault victims. The court has no doubt that the
defense easily anticipated everything [the expert] had to say at trial.” The expert’ s
testimony partially addressed matters of which appellant was found not guilty.
Third, the testimony of the unit sexual assault response coordinator was brief and
inadvertently provided a prior inconsistent statement from SPC EB.



                                          7
ROBINSON—ARMY 20120993

548, 556 (1984). Accordingly, I would set aside the findings and sentence and
authorize a rehearing.

     At the post-trial Article 39(a) session, the assistant defense counsel and CW4
DD had the following exchange:

             Q. Why did you not disclose or answer in the affirmative
             when the judge asked you whether you personally or
             someone close to you had been personally affected b y
             sexual assault? 5

             A. Well, because initially I thought - the way the question
             was asked - and a lot of times, you know, I want to be
             candid here, you lawyers ask some pretty funny questions
             and the judge asked some questions too, but you guys
             asked them. And I thought it was somewhat necessarily
             tied to this case. Was it [sic] similar to what happened in
             this case and it wasn’t. I perceived it wasn’t. But then
             when I left and I knew I was coming back for the next
             court-martial, I said, I might want to say something about
             this because, just in case, I want to make sure, you know,
             I’m a fair guy. The Army teaches us to think and be
             critical thinkers. I thought once that trial was over and I
             was called for the next one, I thought, well I’m going -
             because when I got the email prior to this, I said, “Well
             I’m going to answer yes.” I didn’t know the
             circumstances around it because it just said, “Here is the
             trial,” nothing about the trial but here is the questionnaire.
             It said, “Do any of you have any history?” So, I said,
             “Yes,” there and answered what had happened on that.

             ....

             Q. Prior to the judge and counsel asking you questions,
             the only knowledge that you had of this case was based off
             the charge sheet?

             A. When I came in here and I read the charge sheet, sir,
             yes that’s it.




5
 This question is not entirely accurate because the voir dire question at issue did not
refer to sexual assault generally, but to offenses similar to the charged offense.


                                           8
ROBINSON—ARMY 20120993

         Q. On the charge sheet do you recall what the charges
         were?

         A. I know there was a few. I think there was a few in
         different areas but I can’t - I want to say three in - and
         again - so three in the first part and three in the - I can’t
         really recall all of them.

         Q. Was your understanding of what happened to your
         daughter was sexual assault?

         A. To me it was. It was considered – it was a form of
         sexual assault.

         Q. And so, when the judge asked you, has anyone or any
         member of your family or anyone close to you personally
         ever been a victim of an offense similar to any of those
         charged in this case, your understanding was not sexual
         assault, big sexual assault, but specific to what the
         charges….

         A. That they were similar and this was not similar that’s
         why.

         Q. Now, when you heard of - when you heard evidence
         during the trial about [SPC EB]’s childhood sexual
         assault, do you recall that?

         A. I do, sir.

         Q. When you heard evidence of that why didn’t you make
         mention to the military judge that you perhaps might have
         some knowledge, personal knowledge or personal
         experience similar to the complaining witness in this
         particular case?

         A. I thought that again it was under the same premise of,
         you know, this is the other - I guess the charges are not
         similar I understand that. And I don’t even remember
         what [SPC EB] said. I’m sure some of it may have been
         similar but I didn’t think it warranted me to - and I didn’t
         even know I could to be honest to interject at that time and
         say, “Hey....” but it didn’t cross my mind either because I
         was already on the panel and I owed it to both parties to



                                        9
ROBINSON—ARMY 20120993

             be fair and impartial, you know, to be the professional
             officer I am and understand both sides of the story.

             Q. But you do remember that there were elements of child
             sexual assault in this particular case in which [SPC EB]
             testified to?

             A. I do, sir.

(Emphasis added).

      The record indicates CW4 DD contemplated the simi larities between his
daughter’s case and the charges during voir dire and later during the trial itself.
Nevertheless, the military judge found:

             [CW4 DD] testified convincingly at the post -trial [Article
             39(a) session] on this matter that the incident i nvolving
             his daughter did not cross his mind when he was asked
             those questions because he knew he owed it to both parties
             to be fair and was shure [sic] that he could be. Only later,
             after the trial when asked a different question, did he think
             of the incident involving his daughter and decide that he
             maybe should answer the question a little more broadly.

     An impartial trier of fact is essential to ensuring the right to a fair trial. The
Supreme Court describes the function of voir dire as follows:

             Voir dire examination serves to protect that right by
             exposing possible biases, both known and unknown, on the
             part of potential jurors. Demonstrated bias in the
             responses to questions on voir dire may result in a juror
             being excused for cause; hints of bi as not sufficient to
             warrant challenge for cause may assist parties in
             exercising their peremptory challenges. The necessity of
             truthful answers by prospective jurors if this process is to
             serve its purpose is obvious.

McDonough, 464 U.S. at 554. “Where a potential member is not forthcoming . . .
the process may well be burdened intolerably.” United States v. Mack, 41 M.J. 51,
54 (C.M.A. 1994). We expect complete candor from court members during voir dire.
United States v. Albaaj, 65 M.J. 167, 169 (C.A.A.F. 2007) (citing United States v.
Modesto, 43 M.J. 315, 318 (C.A.A.F. 1995)). “Anything less undermines the
purpose of the member selection process at trial and, in turn, potentially deprives an
accused of an impartial determination of guilt and a fair trial.” Id. (citing Mack, 41



                                           10
ROBINSON—ARMY 20120993

M.J. at 54 (“this Court consistently has required member honesty during voir dire”);
United States v. Lake, 36 M.J. 317, 323 (C.M.A. 1993) (the court will not “condone
such reticence by . . . members”); United States v. Rosser, 6 M.J. 267, 273 (C.M.A.
1979) (“No premium will be paid in the military justice system for lack of candor on
the part of its members”), abrogated on other grounds by United States v. Biagase ,
50 M.J. 143, 151 (C.A.A.F. 1999)).

        “A panel member is not the judge of his own qualifications . . . . The duty to
disclose cannot be dependent upon the court member’s own evaluation of either the
importance of the information or his ability to sit in judgment.” Albaaj, 65 M.J. at
170 (citations omitted). Further, the court member’s duty to disclose “is an
obligation that continues through the duration of the trial. It makes no difference
whether the member knew during voir dire that his response to a question was
incorrect or whether he later realized, or reasonably should have realized, that his
initial response was incorrect.” Id.

       Here, CW4 DD’s negative responses at voir dire and failure to divulge the
information during trial constituted nondisclosure of a material fact under the first
prong of the McDonough test. In a sexual assault case, the fact that a panel
member’s child was the victim of a sexual assault is material information that
necessarily correlates with the appellant’s right to be judged by an impartial fact
finder. This nondisclosure deprived the parties and the military judge of the
opportunity to inquire about potential biases harbored by CW4 DD.

       Regarding the second prong to the McDonough test, knowledge that CW4
DD’s daughter was the victim of a sexual assault would have established a basis for
a valid challenge for cause under Rule for Courts -Martial 912(f)(1)(N) under an
implied bias theory. “[T]he test for implied bias is objective, a nd asks whether, in
the eyes of the public, the challenged member’s circumstances do injury to the
‘perception of appearance of fairness in the military justice system.’” United States
v. Terry, 64 M.J. 295, 302 (C.A.A.F. 2007) (quoting United States v. Moreno, 63
M.J. 129, 134 (C.A.A.F.2006)). “In making this objective evaluation, we ask
whether most members in the same position . . . would be prejudiced or biased.”
Albaaj, 65 M.J. at 171 (citing Terry, 64 M.J. at 302).

       The evidence from the post-trial Article 39(a) hearing also revealed that CW4
DD believed the person who sexually assaulted his daughter received “a slap on the
wrist.” He explained, “I was hoping she would at least go to . . . juvenile detention
or something like that. . . . I thought more should have happened to her. She really
just went home with nothing - no penalty or anything, so that’s what I mean.”
Additionally, CW4 DD testified that the incident “nearly caused a divorce between
me and my wife,” and that his daughter “bounc ed back” after she went to counseling
for a couple of years following the sexual assault. Had CW4 DD properly divulged
the information during voir dire or at trial, counsel could have made further inquiry



                                          11
ROBINSON—ARMY 20120993

that would have likely prompted a request to remov e CW4 DD from the panel either
for cause or via a peremptory challenge, as needed.

      The nondisclosure by CW4 DD, combined with his remarks regarding
punishment and how his daughter’s case affected his family, raise significant
concerns about the fairness and impartiality of the proceeding, especially
considering the government introduced evidence of child sexual abuse suffered by
SPC EB to bolster its case-in-chief.

       When CW4 DD decided to answer the boilerplate voir dire questions in the
negative, he clearly did not appreciate the effect this would have on the proceeding.
It does not appear CW4 DD tried to deceive the court regarding the incident.
Regardless, to focus on characterizing his testimony as “honest” misses the point.
The appellant has a constitutional right to a fair trial by an impartial panel. Voir
dire is the primary mechanism that safeguards this right. When CW4 DD did not
provide correct answers to material voir dire questions -- for whatever reason -- the
parties did not have information necessary to apply this crucial vetting process.

       By distinguishing his daughter’s case from the charges against the appellant,
CW4 DD acted as the judge of his own qualifications and concealed material
information from the court. Consequently, a panel member whose child was the
victim of sexual assault sat in judgment at the appellant’s trial for sexual assault,
unbeknownst by the parties. Being “a fair guy,” and with the experience of
appellant’s trial under his belt, CW4 DD correctly answered a similar question
before sitting as a member at a subsequent sexual assault trial. But this revelation
was too late for the appellant, who had been tried and found guilty without the
benefit of a fair member selection process due to CW4 DD’s inadvertent l ack of
candor throughout the proceeding.

        Finally, while the military judge identified the law pertaining to nondisclosure
by a member at voir dire, tests for actual and implied bias, and the liberal grant
mandate, he did not include any analysis to suppo rt his ruling on this issue. We are
left to speculate how the military judge applied the law to facts revealed by CW4
DD at the post-trial Article 39(a) session seven months after the trial . It is difficult
to defer to the military judge when no rational e for his ruling on this issue is
available for review. In essence, notwithstanding Albaaj, the ruling depends on
CW4 DD’s own evaluation of both the information regarding his daughter’s sexual
assault and his ability sit in judgment on appellant’s panel. If the information had
been revealed during voir dire, I am convinced CW4 DD would have been excused
from the panel after a challenge for cause.

      Under the totality of the circumstances, a reasonable public observer would
conclude that CW4 DD’s participation as a panel member after failing to disclose his
daughter’s sexual assault during appellant’s trial injured the perception of fairness in



                                           12
ROBINSON—ARMY 20120993

the military justice system. The findings and sentence should be set aside and a
rehearing should be authorized to ensure the appellant receives a fair trial by an
impartial trier of fact.



                                        FOR THE COURT:




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




                                          13
