                              IN THE CASE OF


                        UNITED STATES, Appellee

                                     v.

                         Allan P. JAMES, Airman
                       U.S. Air Force, Appellant

                               No. 04-0284

                          Crim. App. No. 34863

       United States Court of Appeals for the Armed Forces

                        Argued November 8, 2004

                          Decided May 26, 2005

ERDMANN, J., delivered the opinion of the court, in which
GIERKE, C.J., and CRAWFORD, EFFRON, and BAKER, JJ., joined.

                                  Counsel

For Appellant: Captain L. Martin Powell (argued); Major Terry
L. McElyea (on brief).

For Appellee: Captain Stacey J. Vetter (argued); Colonel
LeEllen Coacher and Lieutenant Colonel Robert V. Combs (on
brief).

Military Judge:    Thomas W. Pittman


  This opinion is subject to revision before final publication.
United States v. James, No. 04-0284/AF

     Judge ERDMANN delivered the opinion of the court.

     Airman Allan P. James pleaded guilty to using and

distributing ecstasy in violation of Article 112a, Uniform Code

of Military Justice (UCMJ), 10 U.S.C. § 912a (2000).    He was

sentenced to a dishonorable discharge, two years of confinement,

forfeiture of all pay and allowances, and reduction to the grade

of E-1.   The convening authority approved the findings and

sentence and granted James 120 days of administrative

confinement credit under Rule for Courts-Martial (R.C.M.)

305(k).   On December 10, 2003, the United States Air Force Court

of Criminal Appeals affirmed the findings and sentence in an

unpublished opinion.    United States v. James, No. ACM 34863

(A.F. Ct. Crim. App. Dec. 10, 2003).

     A judge may limit a defendant’s cross-examination of a

prosecution witness regarding the terms of a plea agreement

entered into by the witness, so long as adequate inquiry into

possible bias of that witness has been allowed through other

lines of questioning.   United States v. Nelson, 39 F.3d 705, 708

(7th Cir. 1994).   During James’s court-martial the military

judge allowed the defense to cross-examine one of the

prosecution’s witnesses concerning some aspects of the witness’s

pretrial agreement.    The military judge, however, precluded the

defense from questioning the witness regarding a specific term

of that agreement.    We granted review of Issue I to determine



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United States v. James, No. 04-0284/AF

whether the limitations placed on the cross-examination of the

witness impermissibly infringed upon James’s Sixth Amendment

rights.1

      A member of a court-martial panel may be removed for cause

if it is shown that he or she “has an inelastic opinion

concerning an appropriate sentence for the offenses charged.”

R.C.M. 912(f) discussion.   During voir dire one of the potential

members expressed reservations about discharging servicemembers

who were convicted of minor drug crimes.   She later agreed that

if the evidence warranted, she would be able to vote for a

punitive discharge.   The military judge granted the Government’s

challenge for cause against the member.    We granted review of

Issue II to evaluate whether the military judge’s decision to

grant the challenge for cause was prejudicial error.2




1
    In Issue I we granted review of the following:

      WHETHER THE MILITARY JUDGE ERRED TO THE PREJUDICE OF
      APPELLANT'S SIXTH AMENDMENT RIGHT TO CONFRONT THE
      WITNESSES AGAINST HIM BY REFUSING TO PERMIT DEFENSE
      COUNSEL TO EXPLORE THE POTENTIAL BIAS OF PROSECUTION
      WITNESSES ARISING FROM PROMISES BY THE GOVERNMENT TO
      LIMIT PUNISHMENT OF THE WITNESSES IN EXCHANGE FOR
      COOPERATION WITH THE GOVERNMENT IN THE PROSECUTION OF
      APPELLANT.
2
    In Issue II we granted review of the following:

      WHETHER THE MILITARY JUDGE ERRED IN GRANTING THE
      PROSECUTION'S CHALLENGE FOR CAUSE (OVER DEFENSE
      OBJECTION) AGAINST A COURT MEMBER.



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United States v. James, No. 04-0284/AF

     We find that the military judge did not err in regard to

either ruling.   His ruling limiting cross-examination did not

impermissibly infringe on James’s Sixth Amendment rights and his

grant of the Government’s challenge for cause was not an abuse

of discretion.   Accordingly, we affirm the decision of the Court

of Criminal Appeals.

I.   Cross-Examination of Airman Basic Rose

                            Background

     During the sentencing phase of the trial, the prosecution

called Airman Basic Scott Rose, James’s alleged best friend, to

testify against James.   Rose testified that James had introduced

him to ecstasy by providing him with his first ecstasy pill.     He

also testified about James’s use and distribution of ecstasy on

a number of occasions.   At the time of his testimony, Rose had

been tried by a general court-martial, had pled guilty pursuant

to a pretrial agreement, and had been sentenced.

     His pretrial agreement limited the period of confinement

that could be approved by the convening authority to eighteen

months.   Although the maximum authorized punishment for Rose’s

crimes included the possibility of confinement for fifty-two

years, his adjudged sentence was eighteen months and a punitive

discharge.   At the time of Rose’s testimony he had not yet

submitted clemency matters for the convening authority’s

consideration.



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United States v. James, No. 04-0284/AF

     During cross-examination of Rose, the defense attempted to

explore Rose’s potential bias in favor of the Government by

inquiring into Rose’s offenses and the terms of his pretrial

agreement.   The military judge allowed the defense some latitude

to explore potential motives for Rose to fabricate testimony

because of his pretrial agreement.    He ruled, however, that the

terms of Rose’s pretrial agreement concerning the maximum

punishment the convening authority could approve were not

relevant.

     In response to questioning by the defense and trial

counsel, Rose acknowledged:    (1) that he had a pretrial

agreement in his own court-martial; (2) that as part of that

pretrial agreement he pleaded guilty and entered into a

stipulation of facts; (3) that he had immunity for his testimony

in James’s court-martial; (4) that his pretrial agreement

required him to cooperate with the Government against his best

friend; and (5) that clemency was still pending in his case and

as part of that process he would be able to tell the convening

authority that he had cooperated and testified against James.

                              Discussion

     Military Rule of Evidence 608(c) provides that “[b]ias,

prejudice, or any motive to misrepresent may be shown to impeach

the witness either by examination of the witness or by evidence

otherwise adduced.”   James argues that he was precluded from



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United States v. James, No. 04-0284/AF

adequately exploring the bias and motives of a witness against

him by the military judge’s rulings, in violation of his Sixth

Amendment rights.   He notes that in his pretrial agreement, Rose

received a reduction in his possible sentence from fifty-two

years to eighteen months.   He argues that this potential

windfall was relevant evidence of Rose’s bias in favor of the

Government, regardless of the fact that Rose had already been

sentenced to eighteen months and would not realize any actual

benefit of the sentence limitation.

     The Government argues that the military judge exercised his

discretion in placing reasonable limits on Rose’s cross-

examination in order to avoid confusion of the issues.   It

contends that James had ample opportunity to explore Rose’s bias

by exposing the fact that he was testifying pursuant to a

pretrial agreement and by obtaining his admission that he might

receive a benefit in the form of clemency from his testimony.

The Government concludes that Rose’s failure to actually benefit

from the agreement means that the terms of the agreement are not

relevant to show possible bias.

     In United States v. Bahr, 33 M.J. 228, 232 (C.M.A. 1991),

this court adopted the standard set forth by the Supreme Court

in Delaware v. Van Arsdall, 475 U.S. 673 (1986), for determining

whether cross-examination inquiring into the potential bias of a

witness was properly limited:



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United States v. James, No. 04-0284/AF

     “[w]e have recognized that the exposure of a witness’
     motivation in testifying is a proper and important
     function of the constitutionally protected right of
     cross-examination.” Davis [v. Alaska, 415 U.S. 308,
     316-17 (1974)] (citing Green v. McElroy, 360 U.S. 474,
     496 (1959)). It does not follow, of course, that the
     Confrontation Clause of the Sixth Amendment prevents a
     trial judge from imposing any limits on defense
     counsel’s inquiry into the potential bias of a
     prosecution witness. On the contrary trial judges
     retain wide latitude insofar as the Confrontation
     Clause is concerned to impose reasonable limits on
     such cross-examination based on concerns about, among
     other things, harassment, prejudice, confusion of the
     issues, the witness’ safety, or interrogation that is
     repetitive or only marginally relevant.

475 U.S. at 678-79.   Because this court has not had occasion to

specifically address the scope of cross-examination that a judge

should allow concerning pretrial agreements, it is helpful to

review the federal circuit court decisions that have considered

the issue.

     In United States v. Maceo, 947 F.2d 1191 (5th Cir. 1991),

the Fifth Circuit found that the trial judge did not err when he

limited the defense attorney’s cross-examination of a witness

regarding the terms of his plea agreement.   The court noted that

“[t]he Confrontation Clause does not prohibit a trial judge from

limiting cross-examination where the testimony would confuse the

issues, is repetitive or only marginally relevant.”   Maceo, 947

F.2d at 1200 (citing Van Arsdall, 475 U.S. at 679).      The court

found that the jury was well aware of the terms of the plea

agreement and that limiting the cross-examination simply

precluded additional questioning on the subject.   Id.


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United States v. James, No. 04-0284/AF

     In United States v. Nelson, the Seventh Circuit found that

the Sixth Amendment rights of the defendants were not violated

where the trial judge prevented defense counsel from asking two

prosecution witnesses “what penalties they might have faced

without plea bargains.”   39 F.3d 705, 707-08 (7th Cir. 1994).

Defense counsel was allowed to impeach the motives of the

witnesses by eliciting testimony that the witnesses were

testifying under plea bargains as well as what benefits they

were to receive from their agreements.   Id. at 707.

     The court in Nelson discussed the limitations of cross-

examination and noted that courts must initially distinguish

between the “‘core values of the confrontation right and more

peripheral concerns which remain within the ambit of the trial

judge’s discretion.’”   39 F.3d at 709 (quoting United States v.

Saunders, 973 F.2d 1354, 1358 (7th Cir. 1992)).   Addressing the

limitations imposed by the trial judge, the court found that

there was no constitutional violation because the limitations:

     on cross-examination did not deny the defendants the
     opportunity to establish that the witnesses may have
     had a motive to lie; rather, the limitations denied
     them the opportunity to add extra detail to that
     motive. “‘The exposure of a witness’ motivation in
     testifying is a proper and important function of the
     constitutionally protected right of cross-
     examination.’” Van Arsdall, 475 U.S. at 678-79, 106 S.
     Ct. at 1435 (quoting Davis v. Alaska, 415 U.S. 308,
     316-17, 94 S. Ct. 1105, 1110, 39 L. Ed. 2d 347
     (1974)). But once this core function is satisfied by
     allowing cross-examination to expose a motive to lie,
     it is of peripheral concern to the Sixth Amendment how
     much opportunity defense counsel gets to hammer that


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United States v. James, No. 04-0284/AF

     point home to the jury. The trial court may preclude
     “cumulative and confusing cross-examination into areas
     already sufficiently explored to permit the defense to
     argue personal bias and testimonial unreliability.”
     United States v. Robinson, 832 F.2d 366, 373 (7th Cir.
     1987), cert. denied, 486 U.S. 1010, 108 S. Ct. 1739,
     100 L. Ed. 2d 203 (1988).

Id. at 708.    The court then went on to find that the trial judge

had allowed the jury to hear enough evidence to make a

“discriminating appraisal” of the witnesses’ motives and biases,

and that he did not abuse his discretion in limiting cross-

examination.   Id.

     Faced with somewhat different factual situations, other

circuit courts have taken different views of the issue. In

United States v. Roan Eagle, 867 F.2d 436 (8th Cir. 1989), a

prosecution witness had pleaded guilty to manslaughter instead

of murder as part of her plea agreement but had not yet been

sentenced.    The Eighth Circuit found that under those

circumstances an inquiry into the terms of the agreement was

essential.    The court noted that the information is especially

relevant if the witness has not yet been sentenced because

“there is a continuing incentive to give testimony that

strengthens the prosecution’s case.”   Id. at 443.

     In United States v. Schoneberg, 388 F.3d 1275 (9th Cir.

2004), the prosecution witness was a coconspirator whose plea

agreement required his cooperation with the Government.   The

jury was made aware of the plea agreement and also was told that



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United States v. James, No. 04-0284/AF

a term of the plea agreement reserved the possibility of a

sentence reduction after the witness testified against his

coconspirators.   That term required the Government to file a

post-sentencing motion to reduce the witness’s sentence if it

determined that he had provided “substantial assistance” to the

Government through his testimony.    Schoneberg, 388 F.3d at 1277-

78.

      The trial judge prohibited the defense attorney from cross-

examining the witness as to whether his testimony was affected

by the Government’s promise to move for a sentence reduction if

he provided them with “substantial assistance.”   Id.    The Ninth

Circuit found that this prohibition had the effect of keeping

from the jury the fact that the witness was conscious,

throughout his testimony, that the Government and not just the

jury was judging the truthfulness of his statements.    The court

found that this consciousness gave him a motive to lie in favor

of the Government and therefore was a relevant area for cross-

examination.   Id. at 1280.

      Having reviewed the holdings in these cases, we conclude

that the limitations placed on cross-examination by the military

judge were within his discretion and did not affect James’s core

constitutional right to cross-examination.   The members knew

that Rose had received an agreement in exchange for his

testimony and that pursuant to that agreement he had pleaded



                                10
United States v. James, No. 04-0284/AF

guilty and entered a stipulation of fact.   They also knew that

this agreement required him to cooperate with the Government in

James’s prosecution.   They knew that he had been granted

immunity for his testimony in James’s trial.    Finally, they

knew that his clemency hearing was still pending and that he

would be able to tell the convening authority that he had

cooperated in James’s prosecution.    As the Seventh Circuit noted

in Nelson, once the defendant has been allowed to expose a

witness’s motivation in testifying, “it is of peripheral concern

to the Sixth Amendment how much opportunity defense counsel gets

to hammer that point home to the jury.”   Nelson 39 F.3d at 708.

     Additionally, we find it important to consider that

although Rose entered into a pretrial agreement that promised a

substantial reduction in sentence if he cooperated with the

Government, he already had been sentenced to eighteen months of

confinement by members who had no knowledge of the terms of the

pretrial agreement.    This is distinguishable from both Roan

Eagle and Schoneberg where the witnesses had yet to receive the

benefit of their bargain with the Government and were therefore

under a continuing obligation to comply with their agreements to

testify against the defendant to obtain the promised relief.

Rose’s only “continuing incentive” identified in this case was

that his clemency appeal was pending before the convening

authority and if he testified favorably he would be able to



                                 11
United States v. James, No. 04-0284/AF

inform the convening authority that he cooperated with the

Government in James’s trial.   As noted above, the military judge

allowed the defense to bring these facts to the attention of the

members and expose Rose’s potential bias and motive to lie.

      A military judge has wide discretion to limit repetitive

cross-examination or to prohibit cross-examination that may

cause confusion.   See Van Arsdall, 475 U.S. at 679.    The

military judge in this case properly exercised this discretion

and we affirm the decision of the Court of Criminal Appeals.

II.   Voir Dire of Major Winkler

                            Background

      During voir dire of potential panel members, Major (Maj)

Maryellen Winkler was questioned regarding her view of

discipline in the Air Force and more specifically regarding her

views on punishments for drug crimes.    In responding to those

questions Maj Winkler mentioned her concern over a newspaper

article that she had seen regarding a large drug bust in which a

number of Air Force members were caught and punished.    Her

testimony in response to questions from the trial and defense

counsels and the military judge is as follows:

      Examination by Circuit Trial Counsel:

      Q. Major Winkler in response to one of my questions
      regarding progressive discipline, you said that you didn’t
      feel that a court-martial may be the appropriate starting
      point for someone who has admitted guilty to use and
      illegal distribution of drugs. Could you please expound on
      your answers to why you feel that way?


                                   12
United States v. James, No. 04-0284/AF


     A. I truly feel, looking at the individual, it almost
     feels like it is a one shot deal. You have one shot at
     making a mistake and then that’s it. Of course everyone has
     seen the Air Force Times showing the big drug bust in the
     Virginia area and all the airmen and airman basics, senior
     airman and what sentences they have received, etcetera,
     etcetera, and I thought about that before I even knew what
     this case was about and it was kind of shocking to me.

     Q.   The length of time?

     A.   The length of time and what they received, yes.

     Q. Will you be thinking about that back in the deliberation
     room?

     A. I’m human and that is just how I feel. Yes, I would
     be. It might be just my personality, it just might be
     looking at him, he’s young, does he just deserve one shot
     and hopefully not getting what they gotten. There is a
     conflict in my mind. But, I didn’t hear any of the
     evidence and I don’t know exactly what is going on, etc.

     Q. Let me ask you . . . do you think that drug use is more
     of a medical problem then [sic] . . .

     A. No, not at all. I guess maybe what I am thinking is
     that we are all young, we all do stupid stuff sometimes,
     and one mistake shouldn’t kill us . . . .

     . . . .

     Examination by Circuit Defense Counsel:

     Q. Ma’am, if the military judge instructs you that you are
     to consider -– I expect that he will instruct you that you
     are to consider the full range of punishments, from no
     punishment up to the maximum punishment, can you assure the
     court, both the government and defense, that you will do
     that?

     A. I think I can, because we are looking at him totally
     not as a young kid, we are looking at him as a military
     member too.

     . . . .



                                13
United States v. James, No. 04-0284/AF

    Examination by the Military Judge:

     Q. And let me just ask you, do you feel comfortable
     sitting on this case?

     A.   No, I don’t.

     Q.   And why is that?

     A. Just because, again, I have read -– you just see in the
     paper all the time and the punishments that the kids got,
     the young airmen got in Virginia -– we have no tolerance of
     drugs whatsoever in the military, which we know that. Yet
     on the other hand, I just feel that a young person
     shouldn’t be probably kicked out and put in jail or
     whatever.

     Q. I guess I am trying to get you to go ahead and conclude
     for me. What is the conclusion?

     A. I just feel that he deserves more of a shot than one
     error in his career.

     Q.   When I asked you if you feel uncomfortable sitting in
     the case, do you feel that you can perform your duties in
     sitting on a case?

     A.   Definitely, Sir, I can perform my duties. Would I
     feel comfortable with myself, yes, because it is my duty.
     Will I do the right thing? Yes, I will.

     . . . .

     Q.   And you mentioned these Air Force Times articles that
     you have read . . . [.]

     . . . .

     A.   Actually there was a big bust in Virginia, the
     Virginia area, I think there were about 20 people that were
     listed in the Air Force Times ranging anywhere from an
     airman basic -– I think the highest rank was a senior
     airman, I am not sure. Then I saw all their sentences and
     I was shocked, I was taken back.

     Q.    At what?




                               14
United States v. James, No. 04-0284/AF

     A.   Their sentences. I really felt that while these –-
     again, I didn’t hear any of their cases, but I just
     thought, wow, these guys made a mistake and look at the
     punishment for this. I am not making myself clear am I?

     Q.   No, it is important since you have had some obviously
     careful thought about the offense of which the accused is
     now before this court for sentencing, that you disclose to
     both parties what that careful thought is. Can you be fair
     to both the government and the accused in this case?

     A.     Yes, I feel I can be fair, Sir.


     The prosecution challenged Maj Winkler for cause on the

grounds of an “inelastic predisposition in favor of the

defense.”   The military judge granted the challenge stating:

     Well, my recollection is that she not only said she
     was shocked twice by a punitive discharge, but shocked
     by another form of punishment as well, that may have
     been confinement. She also said that. “She hated or
     hates to see the airmen kicked out for this offense”
     were the words I recall her using in reference to
     those discharges. She seemed almost relieved when I
     asked if she would be uncomfortable sitting on the
     court, as though it was going to be an opportunity for
     her not to have to sit on the court. I think at the
     same time she is professional enough to let us know
     that as much as she hates to see a sort of punishment
     like this, or as much as she is shocked, she is a
     professional officer, to let us know that she would
     try and do her best to be fair in performing her
     duties. It just seems to the court, from viewing her
     and viewing her expressions as she described the Air
     Force Times article in regard to those other cases,
     that she would have an extremely difficult time in
     sitting on this case and doing just what she promised
     to do, which was consider the entire range of
     punishments, just wavering a little bit in that area
     is cause for concern as well. I am going to grant the
     challenge for cause.




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United States v. James, No. 04-0284/AF

                             Discussion

     This court has held that an accused “‘has a constitutional

right, as well as a regulatory right, to a fair and impartial

panel.’”   United States v. Strand, 59 M.J. 455, 458 (C.A.A.F.

2004) (quoting United States v. Wiesen, 56 M.J. 172, 174

(C.A.A.F. 2001)).   A member may be removed for cause if it is

shown that he or she should not sit “in the interest of having

the court-martial free from substantial doubt as to legality,

fairness, and impartiality.”   R.C.M. 912(f)(1)(N).     The

discussion accompanying this rule provides that “an inelastic

opinion concerning an appropriate sentence for the offenses

charged” may be grounds for challenge under this provision.

R.C.M. 912(f) discussion.    The party that makes the challenge

for cause has the burden of proving that grounds for a challenge

exist.   R.C.M. 912(f)(3).

     Generally, this court has addressed challenges for cause

where those challenges were denied.3      In evaluating a military

judge’s ruling on a challenge for cause, the court has found it

appropriate to recognize the military judge’s superior position

to evaluate the demeanor of court members.      A military judge’s

ruling on a challenge for cause will therefore not be reversed



3
  It is only in cases involving the death penalty that the court
has been asked to review a challenge for cause that was granted.
See United States v. Curtis, 33 M.J. 101, 107 (C.M.A. 1991);
United States v. Gray, 51 M.J. 1, 31-32 (C.A.A.F. 1999).

                                 16
United States v. James, No. 04-0284/AF

absent a clear abuse of discretion.    See United States v.

McLaren, 38 M.J. 112, 118 (C.M.A. 1993); United States v. White,

36 M.J. 284, 287 (1993).

     In evaluating challenges for cause based on claims of

“inelastic attitude,” this court has held that “an unfavorable

inclination toward an offense is not automatically

disqualifying.   ‘The test is whether the member’s attitude is of

such a nature that he will not yield to the evidence presented

and the judge’s instructions.’”    McLaren, 38 M.J. at 118

(citations omitted) (quoting United States v. McGowan, 7 M.J.

205, 206 (C.M.A. 1979)).

     In the context of challenges brought by a defendant, this

court has stated that “military judges must liberally grant

challenges for cause.”   United States v. Downing, 56 M.J. 419,

422 (C.A.A.F. 2002); see also McLaren, 38 M.J. at 118 (quoting

United States v. Glenn, 25 M.J. 278, 279 (C.M.A. 1987)).      The

“liberal grant” policy supports the UCMJ’s interest in ensuring

that members of the military have their guilt or innocence

determined “by a jury composed of individuals with a fair and

open mind.”   United States v. Smart, 21 M.J. 15, 18 (C.M.A.

1985) (quoting United States v. Deain, 5 C.M.A. 44, 49, 17

C.M.R. 44, 49 (1954)).   It is a response to the unique nature of

the military justice system “because in courts-martial

peremptory challenges are much more limited than in most



                                  17
United States v. James, No. 04-0284/AF

civilian courts and because the manner of appointment of court-

martial members presents perils that are not encountered

elsewhere.”    Id. at 19; see also Glenn, 25 M.J. at 279.   Because

the Government rather than the defendant brought this challenge

for cause, we must first consider whether the “liberal grant”

policy is applicable under those circumstances.

     Unlike the convening authority, who has the opportunity to

provide his input into the makeup of the panel through his power

to detail “such members of the armed forces as, in his opinion,

are best qualified for the duty,” see Article 25(d)(2), UCMJ, 10

U.S.C. § 825(d)(2)(2000); see also R.C.M. 503(a)(1), the

defendant has only one peremptory challenge at his or her

disposal.4    See Glenn, 25 M.J. at 279.   The liberal grant rule

protects the “perception or appearance of fairness of the

military justice system.”    United States v. Dale, 42 M.J. 384,

386 (1995).    Given the convening authority’s broad power to

appoint, we find no basis for application of the “liberal grant”

policy when a military judge is ruling on the Government’s

challenges for cause.




4
  The staff judge advocate also may have the power to excuse
members before the court-martial is assembled, and the trial
counsel then still has one peremptory challenge during the
court-martial itself. See R.C.M. 505(c)(1)(B); R.C.M.
912(g)(1). The Government therefore has ample opportunity to
affect the makeup of the panel before trial defense counsel has
any opportunity for input.

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United States v. James, No. 04-0284/AF

     We turn next to the central question of whether the

military judge’s finding that Maj Winkler “would have an

extremely difficult time in sitting on this case and doing just

what she promised to do, which was consider the entire range of

punishments,” was clearly erroneous.   Maj Winkler repeatedly

expressed concern with the harsh punishments handed out for drug

crimes in the Air Force.   She clearly expressed her feeling that

“we are all young, we all do stupid stuff sometimes, and one

mistake shouldn’t kill us.”   She also stated that she would feel

uncomfortable sitting as a member because of her beliefs.    While

Maj Winkler provided appropriate responses to rehabilitative

questions, the military judge not only was able to hear her

responses, he was able to evaluate her demeanor by “viewing her

and viewing her expressions.”

     We conclude that the military judge did not abuse his

discretion in granting the Government’s challenge to Maj Winkler

on the basis of an “inelastic predisposition.”   The military

judge found that Maj Winkler wavered when asked if she could

consider the entire range of punishments and expressed her

concerns regarding punishments in drug cases both verbally and

nonverbally.   We decline to find his conclusion that she would

have trouble considering the entire range of punishments to be

clearly erroneous.




                                19
United States v. James, No. 04-0284/AF

     We also do not see evidence that the military judge applied

the liberal grant policy in reaching his conclusion.   The record

reflects that he carefully considered all of Maj Winkler’s

responses and her demeanor in reaching his conclusion.

Accordingly, we affirm the decision of the Air Force court as to

Issue II.

                            DECISION

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed as to Issues I and II.




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