                       UNITED STATES, Appellee

                                     v.

                     Robert J. WIESEN, Sergeant
                        U.S. Army, Appellant


                               No. 01-0134

                       Crim. App. No. 9801770

___________________________________________________________

    United States Court of Appeals for the Armed Forces


                        Decided July 10, 2002

                                 Counsel

For Appellant: Colonel Adele H. Odegard, Lieutenant
Colonel E. Allen Chandler, Jr., Major Imogene M. Jamison,
and Captain Sean S. Park (on brief).

For Appellee: Colonel Steven T. Salata, Lieutenant Colonel
Paul H. Turney, Major Margaret B. Baines, and Captain Karen
J. Borgerding (on brief).



Military Judge:      Kenneth D. Pangburn


  THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Wiesen, No. 01-0134/AR



                    ON PETITION FOR RECONSIDERATION

      PER CURIAM:

      The Government petitions for reconsideration of this

Court's opinion at 56 MJ 172 (2001).         In its petition, the

Government argues that we (1) improperly shifted the burden

of establishing a challenge for cause away from the party

making the challenge, contrary to RCM 912(f)(3), Manual for

Courts-Martial, United States (2000 ed.), and (2)

overlooked facts about the relationship between the

challenged member and his subordinates and misapprehended

the operational situation at Fort Stewart at the time of

trial.

      To be successful on a petition for reconsideration,

the petitioner must demonstrate that the Court misconstrued

or overlooked an issue of law or fact.         Rule 32, Rules of

Practice and Procedure, United States Court of Appeals for

the Armed Forces; United States v. Quillen, 28 MJ 166 (CMA

1989)(pet. for recon. denied);         see Fed. R. App. P.

40(a)(2); Lissa Griffin, Federal Criminal Appeals § 7:12 at

7-13 (2002).    For the reasons set forth below, we are not

convinced that we misconstrued or overlooked any point of

law or fact critical to our original opinion.         Thus, we

deny the petition.




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United States v. Wiesen, No. 01-0134/AR



      In our original opinion, we held that the military

judge abused his discretion in failing to grant a challenge

for cause based on implied bias, where one panel member, a

Brigade Commander, had a supervisory position over six of

the other members, and the resulting seven members made up

a two-thirds majority sufficient to convict.       Contrary to

the Government's first assertion, we never shifted the

burden of establishing a challenge for cause away from the

party making the challenge.       As clearly noted in our

opinion, we took our action "in accord with this Court's

precedent on RCM 912."      56 MJ at 175.   Under that

precedent, the burden of establishing grounds for a

challenge for cause rests upon the party making the

challenge.    RCM 912(f)(3); United States v. New, 55 MJ 95,

99 (2001); United States v. Rolle, 53 MJ 187, 191 (2000);

United States v. Warden, 51 MJ 78, 81 (1999); United States

v. Giles, 48 MJ 60, 63 (1998).

      In this case, the defense challenged a panel member

for cause based on implied bias and met its burden by

referencing the member's supervisory position over six of

the other nine panel members, a fact established during

voir dire.    What the Government perceives as burden-

shifting is our suggestion that national security

exigencies or operational necessities could have been used


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United States v. Wiesen, No. 01-0134/AR



in rebuttal to demonstrate "that it was necessary for the

Brigade Commander to serve on this panel."    56 MJ at 176.

That suggestion, however, did not relieve the defense of

its burden of first establishing that a ground for

challenge existed; rather, it simply noted how the

Government might have chosen to respond, if justified by

the facts, once the defense met its burden.

      Contrary to the Government's second assertion, we did

not overlook or misapprehend any facts about command

relationships or operational necessities.    Although our

opinion did not comment on the specifics of each

supervisory relationship or the operational status of each

brigade at Fort Stewart, those particular facts were not

critical to our finding that the military judge abused his

discretion in denying the challenge for cause.

Notwithstanding the operational requirements at the time,

there remained ample officers at Fort Stewart from which to

select a member other than the Brigade Commander.    The

Government did not demonstrate otherwise at trial, in its

brief, or at oral argument, where government counsel was

asked a direct question on this point.

      We also reject the Government's implication that we

improperly established a per se rule requiring

disqualification of a senior member who writes or endorses


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United States v. Wiesen, No. 01-0134/AR



an efficiency report for a junior member.         In our original

opinion, we repeatedly stated just the opposite.         First, we

emphasized that "[i]t is well settled that a senior-

subordinate/rating relationship does not per se require

disqualification of a panel member."         56 MJ at 175.   Later,

we stated that "appellate review of this case neither

requires application of per se principles nor rejection of

[this Court's previous] guidance that implied bias should

be invoked rarely."      Id.   Finally, we remarked that our

decision was "a contextual judgment," and we underscored

the fact that "[t]o address this issue from the standpoint

of performance reports misses the point."         Id. at 175-76.

We continue to reject a per se rule.

      The Chief Judge's dissent relies primarily on cases

involving the Sixth Amendment, without taking into account

the limited applicability of that amendment in the military

justice system.     The Sixth Amendment right to trial by jury

does not apply to courts-martial.         New, 55 MJ at 103;

United States v. Kirkland, 53 MJ 22, 24 (2000); United

States v. Loving, 41 MJ 213, 285 (1994); United States v.

Smith, 27 MJ 242, 248 (CMA 1988); United States v. Kemp, 22

USCMA 152, 154, 46 CMR 152, 154 (1973).         Who may serve on a

court-martial is governed instead by Article 25, Uniform

Code of Military Justice, 10 USC § 825, which permits the


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United States v. Wiesen, No. 01-0134/AR



convening authority – the official who has exercised

prosecutorial discretion in the case – personally to select

the members of the court-martial panel.      See Kemp, 22 USCMA

at 154, 46 CMR at 154.

      This Court, in a long line of cases, has consistently

defined implied bias in terms of a bias viewed through the

eyes of the public.      United States v. Downing, 56 MJ 419,

422 (2002); New, 55 MJ at 99-100; United States v.

Armstrong, 54 MJ 51, 53-54 (2000); Warden, 51 MJ at 81;

United States v. Rome, 47 MJ 467, 469 (1998); United States

v. Napoleon, 46 MJ 279, 283 (1997); United States v.

Daulton, 45 MJ 212, 217 (1996); United States v. Glenn, 25

MJ 278, 280 (CMA 1987); United States v. Smart, 21 MJ 15,

19 (CMA 1985); United States v. Harris, 13 MJ 288, 292 (CMA

1982).   Therefore, the Chief Judge's dissent is incorrect

in suggesting that an issue of implied bias involving the

command relationships among the members of the panel should

be viewed through the prism of the Sixth Amendment's

requirement for a randomly selected jury of one's peers.

The issue is appropriately viewed in the context of public

perceptions of a system in which the commander who

exercises prosecutorial discretion is the official who

selects and structures the panel that will hear the case.

      Accordingly, we deny the petition for reconsideration.


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United States v. Wiesen, No. 01-0134/AR


     CRAWFORD, Chief Judge (dissenting):

     This case marks the first occasion that I have dissented

from a denial of a petition for reconsideration.   It is an

unusual step, but a measure which the majority compels me to

take.   In deciding this case, the majority has: (1) rejected

Supreme Court precedent; (2) discounted the American public’s

ability to understand the sworn voir dire responses of officers

and non-commissioned officers -- individuals selected pursuant

to the stringent requirements of Article 25, Uniform Code of

Military Justice (UCMJ), 10 USC § 825; (3) shifted the general

burden of establishing a member’s disqualification from the

defense and now requires the Government to demonstrate to the

satisfaction of three judges of this Court why the convening

authority chose one member instead of a different one, and in

the process turns Article 25 on its head; and (4) ignored the

doctrine of separation of powers by judicially substituting its

judgment for that of the Legislative and Executive Branches by

undercutting the statutory role of the convening authority to

select members to serve on court-martial panels, as well as the

executive role of the President to promulgate rules governing

challenges to the selection of members.    Because the majority’s

decision is so out-of-step with judicial precedent and practice,

will seriously impact the ability of deployed brigades, separate

battalions, or units of similar size to try courts-martial, and
United States v. Wiesen, No. 01-0134/AR


leaves the field adrift regarding the proper role of military

judges in deciding questions of challenges to court members, I

must again dissent.

     After the members were sworn and received preliminary

instructions, the military judge asked the following questions

and received the following responses:

          Has any panel member, or a member of your family, or
     anyone close to you personally, ever been the victim of an
     offense similar in any way to any of the charges on the
     Flyer. If so, please raise your hand.

          No positive responses.

          The accused in this case is presumed to be innocent
     until his guilt is established by lawful and competent
     evidence beyond a reasonable doubt. Can each panel member
     apply this rule of law and vote for a finding of not guilty
     unless you are convinced beyond a reasonable doubt that the
     accused is guilty? If you can follow that rule of law,
     please raise your hand.

          I note a positive response from all panel members.

          On the other hand, can each panel member vote for a
     finding of guilty if you are convinced under the law that
     the accused’s guilt has been proved by lawful and competent
     evidence beyond a reasonable doubt? Again, raise your hand
     if you agree with that proposition.

          I see a positive response from each panel member.

          Does each panel member understand that the burden of
     proof to establish the accused’s guilt rests solely upon
     the prosecution, that is, the Trial Counsel over there,
     Captain Sharkey and Captain Witherspoon, representing the
     Government, and that that burden never shifts to the
     Defense to establish the accused’s innocence?

          Let me repeat that again. Does each panel member
     understand that the burden to prove guilt rests solely upon
     the prosecution and never shifts to the Defense to


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United States v. Wiesen, No. 01-0134/AR


     establish the innocence?    Does each panel member understand
     that?

            A positive response from each panel member.

          Does each panel member understand, therefore, that the
     Defense has absolutely no obligation to present any
     evidence or to disprove the elements of the offenses; does
     each panel member understand that, if so, raise your hand.

            A positive response from each panel member.

          Is any panel member in the rating chain, supervisory
    chain, or chain of command of any other panel member? If
    so, raise your hand.

          Colonel Williams, who’s under your command or rating
    chain?

      MEM[COL WILLIAMS]: Colonel Mereness is a battalion
    commander for me, Colonel Rogers is a battalion commander
    for me, Major Gonsalves is a battalion XO for me. Colonel
    Hough is my forward support battalion commander and the
    first sergeant down at the end is also in my chain.

      MJ:    First Sergeant Waters.   Who else?

      MEM[COL WILLIAMS]:    Command Sergeant Major Arroyo also is
    in my BCT.

      MJ:    Colonel Mereness, who is under your supervision?

      MEM[LTC MERENESS]: Sir, I just want to indicate that I
    was underneath Colonel Williams.

      MJ: Colonel Hough?

      MEM[LTC HOUGH]:    Sergeant Major Arroyo is my sergeant
    major.

      MJ:    Colonel Rogers?

      MEM[LTC ROGERS]: I am subordinate to Colonel Williams and
    Major Gonsalves is my XO.

      MJ: Command Sergeant Major Peeples, is anyone under your
    supervision?


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United States v. Wiesen, No. 01-0134/AR


      MEM[CSM PEEPLES]:    No one.

      MJ:   Command Sergeant Arroyo?

      MEM[CSM ARROYO]:    No one.

      MJ: Major Patten, any relation to any of the other panel
    members?

     MEM[MAJ PATTEN]:     No, sir.

     MJ: Command Sergeant Major Arroyo, would you feel
   inhibited or restrained in any way in performing your duties
   as a court member including the free expression of your views
   during deliberation by virtue of the fact that Colonel Hough
   and Colonel Williams hold positions of authority over you?

     MEM[CSM ARROYO]: No.

     MJ: Do you believe that you can state your views freely
   and forcefully during deliberations to make your points
   known, your feelings known about issues without any
   inhibition?

     MEM[CSM ARROYO]:     That’s correct.

     MJ: First Sergeant Waters, who's in your supervisory
   chain?

     MEM[1SG WATERS]:     Colonel Williams is my reviewer.

     MJ: Your reviewer.      So, he reviews your report card when
   it comes out?

     MEM[1SG WATERS]:     Yes, sir.

     MJ: Would you feel inhibited or restrained in any way in
   performing your duties as a court member including free
   exercise of your views by virtue of the fact that Colonel
   Williams is your reviewer?

     MEM[1SG WATERS]:     No, sir.

     MJ: You feel that you can express yourself freely and
   openly?

     MEM[1SG WATERS]:     Yes, sir.


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United States v. Wiesen, No. 01-0134/AR


     MJ:   Major Gonsalves, who is in your chain?

     MEM[MAJ GONSALVES]: Colonel Rogers is my battalion
 commander. Colonel Williams is my brigade commander, sir.

     MJ: Would you feel inhibited or restrained in any way in
   performing your duties as a court member including free
   exercise of your views by virtue of the fact that Colonel
   Rogers is your battalion commander?

     MEM[MAJ GONSALVES]:   No, sir.

     MJ:   And you’re the XO?

     MEM[MAJ GONSALVES]:   Yes, sir, I am.

     MJ:   Work pretty close together.

     MEM[MAJ GONSALVES]:   Yes, sir.

     MJ:   Everyday.

     MEM[MAJ GONSALVES]:   Yes, sir.

     MJ: Do you get an opportunity to express your own opinion
   in regard to things, or do you - does he just give you
   direction to go in and you just go?

     MEM[MAJ GONSALVES]:   Sir, I express my own opinions.

     MJ:   You do express your opinions?

     MEM[MAJ GONSALVES]:   Yes, sir.

     MJ:   Do you agree with that, Colonel Rogers?

     MEM[LTC ROGERS]:   Without a doubt, sir.

     MJ:   Colonel Williams is your brigade commander?

     MEM[MAJ GONSALVES]: That’s correct, sir.

     MJ: If you disagree with Colonel Williams on something,
   can you let him know that you disagree?

     MEM[MAJ GONSALVES]:   Oh, yes, sir.

     MJ:   Have you ever done that before?

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United States v. Wiesen, No. 01-0134/AR



     MEM[MAJ GONSALVES]:     Yes, sir.

     MJ:   Colonel Hough, you’re a battalion commander?

     MEM[LTC HOUGH]:     Yes, sir.

     MJ: Would you feel inhibited or restrained in any way
   performing your duties by virtue of the fact that Colonel
   Williams is your brigade commander?

     MEM[LTC HOUGH]:     No, sir.

     MJ:   Can you express yourself freely to him?

     MEM[LTC HOUGH]:     Yes, sir.       Have done so.

     MJ:   Done so in the past?      Would you do it again?

     MEM[LTC HOUGH]:     Yes, sir.

     MJ:   Colonel Mereness, same question.

     MEM[LTC MERENESS]:     No problem, sir.

     MJ:   No problem?

     MEM[LTC MERENESS]:     No, sir.

     MJ:   You could express yourself freely and openly?

     MEM[LTC MERENESS]:     Yes, sir.

     MJ: And you believe that your views are respected and
   received?

     MEM[LTC MERENESS]:     Yes, sir, without a doubt.

     MJ:   Without a doubt. No doubt in your mind?

     MEM[LTC MERENESS]:     No, sir.

     MJ: Colonel Williams, would you be embarrassed or
   restrained in any way in the performance of your duties as a
   court member by virtue of the fact that you hold a position
   of authority over - a number of members of the panel - who
   may disagree with you?


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United States v. Wiesen, No. 01-0134/AR


     MEM[COL WILLIAMS]:    I have no problem, Your Honor.

     MJ: Now, if you had one opinion and you had five or six of
   your subordinates to disagree with you, can you accept that?

     MEM[COL WILLIAMS]:    I have in the past.

     MJ: Colonel Rogers, same question with regard to Major
   Gonsalves.

     MEM[LTC ROGERS]:     I have no problem, sir.

     MJ: Colonel Hough, same question with regard to Sergeant
   Major Arroyo.

     MEM[LTC HOUGH]:     No problem whatsoever.

     MJ:   Did I cover everybody?     Did I leave anyone out ...

No additional questions involving command or supervisory

relationships were asked collectively.     During the challenge

process, MAJ Gonsalves underwent further questioning about his

relationship with his battalion commander, LTC Rogers.

    Trial defense counsel challenged COL Williams for cause

based on implied bias.    The military judge denied the challenge,

finding “all [members] indicated that they could express their

opinions freely and openly and that they would not be inhibited

or unduly influenced by any superior.”     After unsuccessful

challenges for cause against MAJ Gonsalves and CSM Arroyo, based

on implied bias, trial defense counsel peremptorily challenged

COL Williams.

       Implied bias exists as a separate principle when fairness

requires that the potential fact finder be excused.     As defined

by our superior court in United States v. Wood, 299 U.S. 123,

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United States v. Wiesen, No. 01-0134/AR


134 (1936), implied bias is “a bias attributable in law to the

prospective juror regardless of actual partiality.”            Implied

bias is not per se an issue “of public perception and the

appearance of fairness in the military justice system.”1             United

States v. Wiesen, 56 MJ 172, 175 (2001).          It is an issue rooted

in the Sixth Amendment requirement that “the accused shall enjoy

the right to a speedy and public trial, by an impartial jury[.]”2

      In Smith v. Phillips, 455 U.S. 209, 216 (1982), the Court

rejected a claim of implied bias based on the failure of the

prosecutor to disclose that one of the jurors had sought

employment with the prosecutor.        In Phillips, Justice O’Connor,

concurring, suggested “extreme situations that would justify a

finding of implied bias ... include a revelation that the juror

is an actual employee of the prosecuting agency, ... close

relative ... of the participants ..., or that the juror was a

witness ... [to] the criminal transaction.”           Id. at 222.    Our

Court has noted “implied bias should be invoked rarely.”             United

States v. Rome, 47 MJ 467, 469 (1998).          However, our Court has


1
  This Court has traditionally bottomed challenges for implied bias on RCM
912(f)(1)(N), Manual for Courts-Martial, United States (2000 ed.), which
states: “A member shall be excused for cause whenever it appears that the
member [s]hould not sit as a member in the interest of having the court-
martial free from substantial doubt as to legality, fairness, and
impartiality.” The discussion which follows this section gives examples of
grounds for challenge under subsection (N). Those examples relate to the
fairness and impartiality of the individual court-martial members.
2
  The fact that the Sixth Amendment right to trial by jury does not apply to
court-martial proceedings, and that members are selected by a convening
authority on a “best qualified” basis (Art. 25(d)(2), United States v. New,
55 MJ 95, 103 (2001)), does not require us to jettison Supreme Court
precedent and good logic in assessing whether appellant was tried by a fair,
impartial jury of his superiors.
                                      8
United States v. Wiesen, No. 01-0134/AR


invoked implied bias more frequently than its quote in Rome

would indicate.   The case at hand is not an example of one of

those “extreme situations” warranting a finding of implied bias.

     An individual member is tested for his or her personal bias

about the case or controversy or an individual accused in order

to determine suitability for court-martial duty.    Furthermore,

implied bias should not be bottomed on the majority’s impression

of the American public or that public’s perception of a

particular brigade commander.   Rather, consideration of implied

bias should be judged by the long-standing legal standard of the

“reasonable-person test.”   A “reasonable-person” is a person

“knowing all the facts” and circumstances surrounding the issue

in the case, including the rationales of the UCMJ and Manual for

Courts-Martial.   See, e.g., United States v. Jones, 55 MJ 317,

321 (2001)(Baker, J., concurring in the result).    Additionally,

implied bias is normally applied to an unanticipated situation.

It should not be applied to situations that would have been

anticipated by the Congress in adopting Article 25 and the

President in promulgating the Manual.

     For over 100 years, all commissioned officers have been

eligible to serve as members of courts-martial.    In the Army,

these members could be appointed by “the commanding officer of a

brigade, regiment, detached battalion, or corresponding unit[.]”

Art. 23(a)(3), UCMJ, 10 USC § 823(a)(3).   Based on the size of


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United States v. Wiesen, No. 01-0134/AR


the armed forces during the twentieth century, Congress and the

President were well aware that there were many garrisons with

separate brigades.    They made no exclusion for commissioned

officers who were rated by another member of the panel.

However, Congress did provide that an enlisted member could not

sit if the member was assigned to the same unit as the accused,

i.e., a company-type unit or below.

     The President certainly anticipated that servicemembers

would work for each other and, therefore, rate each other.      That

relationship was not considered a basis of challenge for cause,

and this Court should be powerless to remove or modify the

Presidential rules on challenges for cause unless there is an

unanticipated bias that would prevent a fair hearing.

     This is not an instance when a person hears post-trial of a

potential disqualifier, as in Phillips, supra.    Here, the

potential disqualifier was raised at trial, and the potential

members were questioned while under oath by the judge and the

parties.   The potential members unequivocally stated that they

could be impartial.   The judge was present to observe their

demeanor under cross-examination and to evaluate their answers.

Based on the high esteem in which the public holds the military

(see the Harris Poll #50, October 10, 2001 at

http://www.harrisinteractive.com/harris_poll/index.asp?PollYear=

2001), it is hard to imagine that allowing these members to sit


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United States v. Wiesen, No. 01-0134/AR


would offend the public at large.     By disregarding the

observations of the trial judge, the majority creates an

amorphous standard and leaves the system at the mercy of a

subjective (“I know it when I see it”) test, rather than a

reasonable person test.    This leaves trial judges rudderless in

guiding the court to reach a proper conclusion, and undermines

the finality of judgment, as well as the public confidence in

the military justice system.

     The majority’s arguments are reminiscent of those made, and

rejected, in Wood, supra, and Dennis v. United States, 339 U.S.

162 (1950).   Dennis was convicted after he failed to appear

before the Committee on Un-American Activities of the House of

Representatives for criminal contempt.    His jury was primarily

composed of United States government employees.      The Supreme

Court rejected Dennis’s claims of implied bias based on the fact

that federal employees would not vote to acquit him and run the

risk of being branded disloyal or having their government

employment terminated.    The Supreme Court held:    “A holding of

implied bias to disqualify jurors because of their relationship

with the Government is no longer permissible.”      Id. at 171.

     Our High Court has repeatedly emphasized that an accused is

always free to show the existence of actual bias, either during

trial or in some instances during post-trial proceedings.      See

Phillips, supra; Remmer v. United States, 347 U.S. 227 (1954);


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United States v. Wiesen, No. 01-0134/AR


Dennis, supra.   Appellant had ample opportunity to show the

actual bias of COL Williams, or any other member, at trial.

Yet, he chose not to ask COL Williams one single question about

his command relationship with other members after the military

judge received assurances from all in COL Williams’s command and

supervisory chains that there would be no improper influence

exerted.   The majority refuses to recognize how a reasonable

member of the general public would examine all of the

circumstances, including the members’ statements under oath, the

historical background of the UCMJ, the specific reasons for

challenges that exist in the UCMJ and Manual but not in the

Federal Rules of Criminal Procedure, and the reservation of

implied bias for rare or exceptional circumstances.   The record

of trial in this case clearly establishes that the members were

fully capable of deciding appellant’s innocence or guilt based

upon the evidence presented to them.

     Article 25(d)(2) instructs the convening authority to

detail members who are “best qualified for the duty by reason of

age, education, training, experience, length of service, and

judicial temperament.”   Article 25 does not tell the convening

authority that he must consider military necessity, deployment,

or other operational exigencies when selecting court-martial

members.   But see Rome, 47 MJ at 467; United States v.

Youngblood, 47 MJ 338 (1997).   The burden is on defense counsel


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United States v. Wiesen, No. 01-0134/AR


to show the particular members selected by the convening

authority should not sit because of bias.   It is not incumbent

upon the Government to show that military necessity required the

convening authority to select certain members to the exclusion

of others.

     The logical extension of the majority’s view will make it

very difficult for a deployed convening authority of a detached

brigade, separate battalion, or units of similar size to convene

a court-martial.   This not only defeats the flexibility for

which the UCMJ has provided since its inception, but also

undermines good order and discipline in the armed services.     If

the commander of a brigade, separate battalion, or units of

similar size of soldiers currently deployed in Asia wanted to

convene a court-martial, he or she may practicably be precluded

from doing so without going outside the unit or changing venue.

Either may impact on the mission.

     This Court has generally supported the proposition that

professional relationships, such as we find in the case at hand,

do not justify removal of a member for implied bias.   See, e.g.,

United States v. Ai, 49 MJ 1 (1998)(unanimous court held that

routine official or professional relationships between court-

martial members and witness in that particular case are not per

se disqualifying); United States v. Bannwarth, 36 MJ 265 (CMA

1993)(senior-subordinate relationship between court members is


                                13
United States v. Wiesen, No. 01-0134/AR


not automatically disqualifying of senior member); United States

v. Porter, 17 MJ 377 (CMA 1984)(friendship with the trial

counsel was not per se disqualifying); accord United States v.

Warden, 51 MJ 78 (1999); United States v. Murphy, 26 MJ 454 (CMA

1988).    In the same vein, we have refused to disqualify a court

member because that member’s friends have been victims of crimes

similar to the one with which an accused is charged.   See United

States v. Henly, 53 MJ 488 (2000); United States v. Velez, 48 MJ

220 (1998).

     The majority’s opinion also puts trial judges in a unique

“box.”    Military judges now must assume the role we have always

left to competent counsel and ferret out remote relationships

between court members and aspects of the case.   Are military

judges now required to ask presumably competent counsel on the

record if they are challenging a certain member for implied

bias, and if not, why not?   Is the onus on the military judge to

extract a statement of waiver of a challenge for implied bias?

Finally, and most disturbing, how long will it be before we see

a challenge to the military judge for implied bias, because,

inter alia, the judge is perceived to be “tough on sentencing,”

and such a perception would not sit well with the American

public?

     Accordingly, the issue is not whether other officers whom

the convening authority could have chosen to sit on appellant’s


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United States v. Wiesen, No. 01-0134/AR


court-martial were available at Fort Stewart.   I am sure they

were.   But unlike the majority, I do not shift the burden to the

Government to show this.   The sole issue is whether COL Williams

was disqualified because of his bias toward the offenses or the

accused.   The facts show he was not.

     The denial of reconsideration leaves the rudderless ship of

“implied bias” adrift on the high seas, searching for a port of

call before it sinks to the bottom of the Marianas Trench.    This

Court has left judge advocates and others trying courts-martial,

as well as convening authorities who have always looked to

Article 25 for advice, now guessing about member selection and

challenges.   Surely, court-martial members, both past and

present, who read the majority’s decision will wonder why the

majority believes that the American public would question their

integrity and their oath to uphold the Constitution and due

process of law.

     I would grant reconsideration; apply Supreme Court

precedent; define the term “implied bias” within its historical

Sixth Amendment context while applying the principle to statutes

and rules promulgated by the Congress and Executive Branch for

governing the armed forces; restore the burden to defense

counsel to show bias of individual court members, like every

other judicial body in this country; and provide military

practitioners with the rudder needed to steer the ship.


                                15
United States v. Wiesen, No. 01-0134/AR


    SULLIVAN, Senior Judge (dissenting):

    I dissent again.   See United States v Wiesen, 56 MJ 172, 181

(2001) (Sullivan, S.J., dissenting).   In my view, the majority

has effectively established a per se rule that a brigade

commander of a significant number of the other members of a panel

is disqualified from sitting on that panel.

    I would grant the Government’s petition for reconsideration

and also have full oral argument on the issue of whether this

Court’s decision made new law in placing the burden on the

Government to justify such a commander sitting on a military

jury.   Any further appellate proceedings in this case would

benefit from such additional analysis from our Court.
