

   
   
   
   U.S. v. Norfleet



IN THE CASE OF
UNITED STATES, Appellee
v.
Donna M. NORFLEET, Staff Sergeant
U.S. Air Force, Appellant
 
No. 98-1131
Crim. App. No. S29280
 
United States Court of Appeals for the Armed
Forces
Argued December 8, 1999
Decided August 16, 2000
EFFRON, J., delivered the opinion of the
Court, in which GIERKE, J., and COX, S.J., joined. CRAWFORD, C.J., and
SULLIVAN, J., filed opinions concurring in part and in the result.
Counsel
For Appellant: Major Gilbert J. Andia, Jr,
USAFR (argued); Major Stephen P. Kelly and Captain Karen L. Hecker
(on brief); Colonel Douglas H. Kohrt, Lieutenant Colonel James
R. Wise, Lieutenant Colonel Ray T. Blank, Jr., Major Carol
L. Hubbard, and Major Thomas R. Uiselt.
For Appellee: Captain Christa S. Cothrel
(argued); Colonel Anthony P. Datillo, Lieutenant Colonel Ronald
A. Rodgers, and Captain Mitchel Neurock, USAFR (on brief).
Military Judge: James A. Young III
 
 


This opinion is subject
to editorial correction before publication.



Judge EFFRON delivered the opinion of the Court.
At a special court-martial, appellant pleaded
guilty to wrongful use of marijuana, in violation of Article 112a, Uniform
Code of Military Justice, 10 USC § 912a. She was sentenced by officer
members to a bad-conduct discharge and reduction to pay grade E-1. The
convening authority approved the sentence as adjudged, and the Court of
Criminal Appeals affirmed in an unpublished opinion dated July 22, 1998.
On appellants petition, we granted review
of the following issues:

I. WHETHER THE MILITARY JUDGE SHOULD HAVE
RECUSED
HIMSELF IN LIGHT OF THE INVOLVEMENT OF HIS
SUPERIORS IN THE PRETRIAL PROCESSING OF
APPELLANT'S CASE.


II. WHETHER, WITHOUT EXPLANATION,
THE AIR FORCE
PROVIDED LESS DUE PROCESS TO APPELLANT, AN
ENLISTED MEMBER, THAN IT PROVIDED TO AN OFFICER
IN A PREVIOUS COURT-MARTIAL IN THE SAME COMMAND.


III. WHETHER THE MILITARY JUDGE ERRED
BY NOT
REQUIRING THE GOVERNMENT TO SHOW THAT A STATED
REASON FOR A PEREMPTORY CHALLENGE OF A FEMALE
COURT MEMBER WAS NOT MERELY PRETEXTUAL.

For the reasons set forth below, we affirm.
 
 


I. THE MILITARY JUDGE
A. The factual setting
At the time the charges were preferred and
referred in this case, appellant was serving as a paralegal in the grade
of Staff Sergeant (E-5). Her duty station was the Area Defense Counsel
Office, RAF Lakenheath, in England. She was assigned for administrative
purposes, including military justice matters, to the Air Force Legal Services
Agency (AFLSA), located at Bolling Air Force Base, Washington, D.C. All
defense paralegals, area defense counsel, circuit counsel, and military
judges were assigned to the AFLSA. The AFLSA was attached to the 11th Wing
at Bolling AFB for host support, and the 11th Wing Commander was the convening
authority for courts-martial involving AFLSA personnel.
Appellant, who had 18 years of active service,
provided a urine sample in the course of a random inspection, and that
sample tested positive for marijuana. Based upon the test results, she
was charged with wrongful use of marijuana. The charge was preferred by
Captain Karyn Wright of the 11th Mission Support Squadron on December 5,
1995. The first indorsement, which was signed by the AFLSA Commander, Colonel
(Col.) William A. Moorman, forwarded the charge to the 11th Support Group.
In the indorsement, Col. Moorman stated:

I am forwarding the charge and specification
preferred against Staff Sergeant Donna M. Norfleet. Staff Sergeant Norfleet's
history of performance on assigned duties has been excellent. Due to my
position as Commander, Air Force Legal Services Agency, it is inappropriate
for me to make a recommendation as to disposition of the charges. I also
decline to make a recommendation as to rehabilitation potential. . . .

Subsequent to referral, but prior to commencement
of trial, Col. Richard Rothenburg replaced Col. Moorman as the AFLSA Commander.
On December 13, the charges were referred to a special court-martial by
Col. Steven A. Roser, the 11th Wing Commander.
The case was tried at RAF Mildenhall, England.
The Chief Judge of the Air Force's European Circuit, Col. James A. Young,
detailed himself to preside. At the outset of the trial, defense counsel
submitted a motion for appropriate relief, requesting (1) that "the military
judge recuse himself," and (2) that "a judge from another military service
. . . be detailed" to preside.
Defense counsel emphasized that the motion
did not constitute a challenge for cause, but focused instead on whether
the military judge should recuse himself under RCM 902(a), Manual for Courts-Martial,
United States (1998 ed.), which states that "a military judge shall disqualify
himself or herself in any proceeding in which that military judge's impartiality
might reasonably be questioned." Defense counsel emphasized that "the defense
does not possess any evidence nor make a claim that this or any Air Force
judge is personally biased against the accused." The motion reflected appellant's
view that "it is the appearance of fairness that should be of paramount
concern here."
In support of the motion, appellant noted that
the charges had been forwarded by the AFLSA Commander, who was in the direct
chain of command for both the accused and the military judge; that the
defense intended to challenge the processing of the case through motions
that "may necessarily call into question the actions of the members of
AFLSA"; and that the motions would "only further bring into light the role
played by AFLSA commanders, who are or may be direct raters and/or indorsers
of the Air Force military judge." In addition, appellant noted that the
AFLSA Commander "received the accused's request for discharge in lieu of
court-martial and (the defense assumes) provided a recommendation to the
Convening Authority, who denied the request." (Parenthetical in original.)
Appellant also took note of the fact that an Army judge had been detailed
to preside in United States v. Nichols, 42 MJ 715 (AF Ct. Crim App
1995), involving charges against an Air Force defense counsel preferred
by the AFLSA Commander. Appellants motion further stated that if the motion
to recuse was denied, "our hands are going to be tied with regard to election
of our forum. . . . [W]e would be somewhat compelled into a selection of
members which may or may not necessarily be the way we would have proceeded
had a different branch of the service had a military judge sit on this
case."
Appellant followed this with a motion challenging
the processing of the case. In that motion, appellant contended that the
AFLSA Commander's decision to forward the charges without recommendation
was inconsistent with the Discussion accompanying RCM 306(c)(5), which
states that when a "commander . . . lack[s] authority to take action .
. ., the matter should be forwarded to a superior officer with a recommendation
as to disposition." Appellant also alleged that the AFLSA Commander's decision
to not set forth a recommendation violated RCM 401(c)(2)(A), which provides:
"When charges are forwarded to a superior commander for disposition, the
forwarding commander shall make a personal recommendation as to disposition.
If the forwarding commander is disqualified from acting as convening authority
in the case, the basis for the disqualification shall be noted." In addition,
appellant alleged that the AFLSA Commander had failed to refer appellant
for a substance abuse evaluation, as required by Air Force Instruction
36-2701, and that such an evaluation could have provided "important insight
into the nature of the offense and the extenuating and mitigating factors
to be considered." In appellant's view, the omissions of the AFLSA Commanders
constituted an abuse of discretion because "in their desire to appear 'nonconflicted,
they have not carried out their obligations as her commander."
The defense counsel asked for permission to
question the military judge on the issue of disqualification or for the
military judge "to state for the record exactly where you fall within th[e]
chain of command and your relationship to both the past and current Air
Force Legal Services Agency Commander." The military judge responded: "All
right, I'll do that. You may, of course, voir dire me if you'd like; but
I will put that on the record first." He then described his relationship
to the AFLSA by noting that as Chief Military Judge of the European Circuit,
his Officer Performance Report (OPR) was written by Col. James Heupel,
the Chief Air Force Trial Judge. His OPR was indorsed by Col. Rothenburg,
who served both as the Director of the Judiciary and the Commander of the
AFLSA. The military judge subsequently noted that his performance report
was subject to further review by the Judge Advocate General of the Air
Force, Major General Hawley. The defense counsel noted that he had "[n]o
questions with the chain of command as you've outlined it" and did not
voir
dire the military judge.
After considering the arguments of counsel,
the military judge noted that he had taken an oath as an officer "to do
my duty under law" and had also "taken an oath to dispense justice impartially."
He added that Col. Heupel had taken "a similar oath," and that Col. Rothenberg
and Major General Hawley, who previously served as military judges, would
be "familiar with the judge's oath and [would] readily understand the need
for independence of trial judges." He summarized his 6 years of service
as a trial and appellate judge, observing that he had issued a variety
of rulings against the Government and that he had never received "any criticism
of any of my rulings" from his supervisors, from the Judge Advocate General,
or in his performance reports.
With respect to the issues raised by the defense,
he observed that he did not know the accused, that he did not know why
Col. Moorman had "forward[ed] the charges without recommendations," and
that it appeared that neither party had asked Col. Moorman to give his
reasons for that action. He observed that Col. Rothenberg's recommendation
to disapprove the request for discharge in lieu of court-martial had stated
that the charges "involve[d] illegal drugs, a special concern in the Air
Force," that appellant was a noncommissioned officer (NCO) with over 17
years experience, and that appellant "held a special position in the administration
of justice as a defense paralegal when she committed the alleged offense."
He added that the act of forwarding charges or disapproving a discharge
in lieu of court-martial did not represent "a conclusion that the person
is guilty but rather an expression that the issue should be resolved by
a court." He specifically stated that in ruling on the recusal motion he
"consider[ed] the fact that the defense intends to litigate the appropriateness
of the preferral and referral of the charges in this case." He also noted
that Col. Heupel had "appoint[ed] an Army judge to try the Nichols case,"
which "eliminate[d] any appellate issue" in that case, but he was not compelled
to do so in the present case because the Air Force probably had not been
"legally required" to use a judge from another service in Nichols.
The military judge stated, "I feel absolutely
no pressure from anyone to resolve this case or any of the issues involved
in this case in any manner inconsistent with my understanding of the law
and my own conscience." He denied the recusal motion, concluding that "a
reasonable person who knew all these facts would not question my impartiality
in this case."
The military judge then considered appellant's
motion challenging the propriety of the forwarding and referral of charges.
He concluded that relief was not warranted, noting: (1) the Commander of
the AFLSA was not required to provide a recommendation as to disposition
under RCM 401(c)(2)(B); (2) the Commander's rationale -- "that he did not
want to create any appearance" of preferring a "particular disposition"
-- constituted "a good faith basis for declining to provide a recommendation";
(3) even if appellant should have been referred administratively for substance-abuse
evaluation, failure to do so was not "an impediment to the referral of
charges"; and (4) the convening authority considered the particular facts
and circumstances of appellant's case, and the referral did not constitute
an abuse of discretion.1
On review in the court below pursuant to Article
66, UCMJ, 10 USC § 866 (1994), appellant renewed her challenge to
the actions surrounding referral of the charge and the decision of the
military judge to not recuse himself. Appellant again noted that in a separate
case involving charges against an Air Force defense counsel, United
States v. Nichols, 42 MJ 715, 718 (AF Ct. Crim. App. 1995), the Air
Force had detailed an Army military judge, and she claimed that the failure
to do the same in her case was a denial of due process.
The Court of Criminal Appeals rejected appellant's
claim that it was improper for the AFLSA commander to forward the charge
without recommendation, noting that her guilty plea had waived the issue.
The court added that even if not waived, there was no requirement for the
forwarding commander to submit a recommendation since the case was being
forwarded to a parallel commander rather than a superior commander. See
RCM 401(c)(2)(B). Unpub.op. at 3. With respect to recusal, the court found
that in light of "the disclosures made by the military judge, no reasonable
person aware of th[e] facts would have questioned his fairness or impartiality."
See
RCM 902. The court also held that the Air Force was not bound to take the
same action in appellant's case -- detailing a military judge from another
service -- as it had taken in Nichols. The court noted that in Nichols,
"the AFLSA Commander actually preferred the charges," whereas in the present
case, the commander had simply forwarded the charge without recommendation.
The court also indicated that because the action in Nichols was
based on different facts, it did not bind the Air Force to take the same
action in a separate and different case. Unpub.op. at 4.
 
 


B. Background -- The Trial Judiciary
in the Military Justice System
From the Revolutionary War through World War
I, courts-martial consisted of panels of officers in which all questions
-- including interlocutory issues -- were decided by the panel as a whole.
See
W. Winthrop, Military Law and Precedents 172 (2d ed. 1920 Reprint); paras.
89-90, Manual for Courts-Martial, 1917 at 46; §§ 370-71, Naval
Courts and Boards, 1937. In 1920, the Articles of War (AW 8 and 31) were
amended to provide that in Army general courts-martial, the convening authority
would appoint "one of the members" of the panel to serve as the law member.
Normally, the law member was a judge advocate, but a "specially qualified"
officer could be appointed if a judge advocate was not available. Act of
June 4, 1920, 41 Stat. 787. In addition to serving as a voting member of
the court-martial panel on the findings, sentence, and challenges, the
law member of a general court-martial was authorized to rule on interlocutory
matters. Except for certain evidentiary issues, however, the rulings of
the law member could be overruled by a majority of the panel. In the absence
of a law member, and at all special courts-martial, the president of the
court-martial ruled upon all interlocutory matters, including evidentiary
questions, and the rulings of the president were subject to being overruled
by a majority of the panel. AW 31 (1920); para. 51, Manual for Courts-Martial,
United States, 1928.
The substantial criticism of the military justice
system as it operated in World War II led to enactment of the Uniform Code
of Military Justice, which contained a wide variety of reforms designed
to minimize the influence of command over the court-martial process. See
Edmund M. Morgan, The Background of the Uniform Code of Military Justice,
6 Vand. L.Rev. 169 (1953); H.R. Rep. No. 491, 81st Cong., 1st Sess. 6-7
(1949); S. Rep. No. 486, 81st Cong., 1st Sess. 3-4,6 (1949). Among the
most significant changes, Congress required (in Article 26(a), UCMJ2)
the appointment in general courts-martial of a "law officer," an attorney
"certified to be qualified for such duty by the Judge Advocate General"
of the service concerned. Unlike the "law member," the law officer did
not serve as a member of the court-martial panel, but instead was assigned
powers and duties similar to those of a civilian judge. Arts. 26(b) and
51, UCMJ.3 Act of May
5, 1950, ch. 169, 64 Stat. 117, 124. The law officer ruled finally on most
interlocutory questions, and as implemented in the Manual for Courts-Martial,
United States, 1951, and under the decisions of this Court, provided authoritative
instructions to the members on matters of law and assumed general responsibility
"for the fair and orderly conduct of the proceedings." See para.
39(b)(1); see generally paras. 61(c), 70, 73, and 76, 1951
Manual, supra; United States v. Biesak, 3 USCMA 714, 722,
14 CMR 132, 140 (1954) (equating "the status of the law officer, wherever
possible, to that of a civilian judge of the Federal system").
Although the Judge Advocate General certified
the qualifications of law officers under Article 26 of the new Code, the
appointment of a law officer to particular courts-martial was made by the
commander convening the court. There was no provision for appointment of
a law officer to preside over special courts-martial.
Congress further enhanced the role of the trial
judiciary in the Military Justice Act of 1968, 82 Stat. 1336. As noted
in the report of the Senate Armed Services Committee, the legislation was
designed to "streamline court-martial procedures in line with procedures
in U.S. district courts, to redesignate the law officer of a court-martial
as a 'military judge' and give him functions and powers more closely aligned
to those of Federal district judges, . . . [and] to increase the independence
of military judges and members and other officials of courts-martial from
unlawful influence by convening authorities and other commanding officers
. . . ." S. Rep. No. 1601, 90th Cong., 2d Sess. 3 (1968). The Committee
noted that the legislation would "provide for the establishment within
each service of an independent judiciary composed of military judges certified
for duty on general courts-martial who are assigned directly to the Judge
Advocate General of the service and are responsible only to him or his
designees for direction and fitness ratings." Id. at 7. The applicable
legislation has remained unchanged since the 1968 amendments.4
To separate the military judiciary from the
traditional lines of command, Article 26(b) provides that military judges
who preside over general courts-martial must be certified as qualified
by the Judge Advocate General of the service concerned. Under Article 26(c),
the military judge "shall be designated for detail" to preside over specific
courts-martial by "the Judge Advocate General, or his designee," and must
be assigned to an organization "directly responsible to the Judge Advocate
General, or his designee" in which his or her "primary duty" is to serve
as a military judge. To further enhance the independence of judicial decisionmaking
by military judges, Article 26(c) provides that no convening authority
and no member of the convening authority's staff may "prepare or review
any report concerning the effectiveness, fitness, or efficiency of the
military judge ... which relates to his performance of duty as a military
judge."5
Congress has provided that an otherwise properly
certified military judge would be disqualified from presiding in the same
case in which he or she: (1) is an accuser, see Art. 1(9), UCMJ,
10 USC § 801(9); (2) is a witness for the prosecution; (3) acted as
the investigating officer; or (4) acted as counsel for either party. Art.
26(d).
A military judge is not statutorily disqualified
from presiding in a case involving an accused who is superior in rank or
grade to the military judge or who is a member of the same unit as the
military judge, in contrast to the limitations on who may serve as a member
of a court-martial panel. See, e.g., Art. 25(d)(1), UCMJ,
10 USC § 825(d)(1) (the general prohibition against service on a court-martial
panel by a person junior in rank or grade to the accused); Art. 25(c)(1)
(precluding service on a court-martial panel by an enlisted person from
the same unit as the accused).
The legislative history and the structure of
the legislation reflect the fact that Congress established the position
of military judge within the context of the military establishment, rather
than as a separate entity. The position of military judge may be filled
only by a "commissioned officer," not a civilian. Compare Art. 26(b)
with
Art. 66(a). As such, the military officers who serve as military judges
are subject to the personnel practices that apply to military officers
in general, including involuntary assignment to a position outside the
judiciary, involuntary geographic reassignment, review by promotion and
retention boards that are not limited to considering military judges, and
absence of tenure in the position.6
Military judges receive standard officer performance reports, subject to
the limitations in Article 26(c).
Military judges are expected to render decisions
that may adversely impact on their superior officers. When the accused
is a field grade or general officer, it would not be unusual for the presiding
military judge to be an officer of lower grade than the accused. At trial,
actions of an officer superior in grade to the military judge frequently
are at issue, such as search authorizations and matters involving allegations
of command influence. In such cases, the military judge has the authority
to order the superior officer to appear and testify, and may issue rulings
that require the superior to take or withhold certain actions -- including
rulings that reflect adversely on the performance of the superior officer.
In some cases, these judicial rulings also may contradict directly the
legal opinions of judge advocates superior in grade to the military judge,
including opinions of the Judge Advocate General of the military department
concerned. Whatever discomfort these circumstances may have created in
an earlier era, the military establishment has long since accepted these
functions of the military judiciary as essential to the maintenance of
a military justice system that not only is fair, but that also is perceived
to be fair by members of the armed forces and the public.
The tension created by the placement of the
military judiciary within the officer personnel structure requires military
judges to be sensitive to particular circumstances that may require consideration
of recusal. The fact that military judges may issue rulings adverse to
the interests of superior officers, however, does not in itself preclude
those judges from exercising independence in their judicial rulings. We
note that while certain aspects of these concerns reflect particular features
of military personnel practices, any tension between status and independence
is not unique to the military. The circumstances faced by military judges
are not at all dissimilar from those facing judges in those state court
systems that provide for relatively brief terms of office, particularly
those that provide for popular election of judges or retention through
the electoral process.
In Weiss v. United States, 510 U.S.
163, 179 (1994), the Supreme Court concluded that "the applicable provisions
of the UCMJ, and corresponding regulations, by insulating military judges
from the effects of command influence, sufficiently preserve judicial impartiality
so as to satisfy the Due Process Clause" even though military judges do
not have fixed terms of office.7
The Court specifically noted that our Court "has demonstrated its vigilance
in checking any attempts to exert improper influence over military judges."
Id.
at 181, citing United States v. Mabe, 33 MJ 200 (1991) (the Judge
Advocate General or that officer's designee may not base the periodic rating
of a military judge upon the rater's opinion of appropriateness of the
sentences awarded by the judge), and United States v. Graf, 35 MJ
450, 465 (1992) (noting that decertification or transfer of a military
judge based upon the Judge Advocate General's opinion of the sentences
awarded by the judge would violate Articles 26 and 37, UCMJ, 10 USC §
837), cert. denied, 510 U.S. 1085 (1994). See also
United States v. Ledbetter, 2 MJ 37 (disapproving official inquiries
questioning decisions by military judge unless conducted in accordance
with statutory standards, or, in the absence of such standards, under professional
guidelines applicable in the civilian sector).8
Pursuant to the rulemaking authority in Article
36, UCMJ, 10 USC § 836, the President has supplemented Article 26
by prescribing RCM 902, "Disqualification of military judge." RCM 902 is
based on the statute governing disqualification of federal civilian judges,
28 USC § 455. See Analysis of Rules for Courts-Martial, Manual,
supra
(1998 ed.) at 21-49. RCM 902(a) states: "[A] military judge shall disqualify
himself or herself in any proceeding in which that military judges impartiality
might reasonably be questioned." RCM 902(b) details five circumstances
constituting specific grounds for disqualification of a military judge:
(1) "personal bias or prejudice"; (2) acting in specified disqualifying
capacities "as to any offense charged or in the same case generally"; (3)
being a "witness in the same case" or an "accuser," as well as having "forwarded
charges in the case with a personal recommendation as to disposition" or
"expressed an opinion concerning the guilt or innocence of the accused";
(4) disqualification under RCM 502(c) or not being properly detailed under
RCM 503(b); and (5) being related "within the third degree of relationship"
to a party, a person with an interest in the outcome, or a likely material
witness in the case.
We have held that preparation of fitness reports
for appellate military judges by senior judge advocates does not create
a circumstance in which the impartiality of a judge might reasonably be
questioned under RCM 902(a). United States v. Mitchell, 39 MJ 131,
cert.
denied, 513 U.S. 874 (1994). Where a personnel action involving a military
judge raised a question as to whether the action was taken in response
to complaints about "light" sentences by the judge, we held that the judge's
full disclosure on the record of the reasons for the personnel action,
and his reasonable disavowal of any impact on his decisionmaking, obviated
any requirement for disqualification under RCM 902(a). United States
v. Campos, 42 MJ 253, 261 (1995). We have noted that "[j]udges have
broad experiences and a wide array of backgrounds that are likely to develop
ties with other attorneys, law firms, and agencies." United States v.
Wright, 52 MJ 136, 141 (1999). Personal relationships between members
of the judiciary and witnesses or other participants in the court-martial
process do not necessarily require disqualification. See United
States v. Hamilton, 41 MJ 32, 38-39 (CMA 1994).
Where no actual bias or prejudice is shown,
as in the present case, the issue of disqualification under RCM 902(a)
is considered under an objective standard: "Any conduct that would lead
a reasonable man knowing all the circumstances to the conclusion that the
judges impartiality might reasonable be questioned is a basis for the
judges disqualification." United States v. Kincheloe, 14 MJ 40,
50 (CMA 1982), quoting E. Thode, Reporters Notes to Code of Judicial
Conduct 60 (1973); see also Wright, 52 MJ at 141.
We have emphasized that "[w]here the military judge makes full disclosure
on the record and affirmatively disclaims any impact on him, where the
defense has full opportunity to voir dire the military judge
and to present evidence on the question, and where such record demonstrates
that appellant obviously was not prejudiced by the military judges not
recusing himself, the concerns of RCM 902(a) are fully met." Campos,
42 MJ at 262; see also United States v. Cornett, 47
MJ 128, 131 (1997). The decision of a military judge not to recuse himself
or herself is reviewed on appeal for abuse of discretion. Mitchell,
39 MJ at 144 n.7.
 
 


B. Discussion
In the present case, appellant has not alleged
that there was any actual conflict, bias, or prejudice that would serve
to disqualify the military judge. The fact that the military judge was
assigned to the same organization and shared a similar professional affiliation
as both appellant and those who processed her case do not constitute factors
that would establish a per se disqualification of a military judge
from sitting on an accuseds case.
In terms of the actions under consideration
at trial, we note that there was nothing unusual or controversial about
the issues raised by the defense concerning the processing of the charges
or the request for discharge in lieu of court-martial by the AFLSA commanders.
Any experienced military judge would be fully aware of the administrative
requirements undertaken by commanders under the UCMJ and Manual for Courts-Martial,
and that such actions would support no inference adverse to an accused
sitting before the military judge. We hold that the fact that those actions
were taken by officers in the chain of command above both the military
judge and this appellant created no risk that the military judge would
fail to perform his normal judicial duties.
Moreover, in the present case, the superiors
took themselves out of the decisionmaking process with respect to referral
of charges. Their decision to do so reflected a desire to avoid any conflict-of-interest
issues. The fact that the military judge had to rule on the propriety of
their doing so did not raise an issue so controversial that an adverse
decision would have had a significant and lasting direct impact on their
professional reputations for competence and integrity. The issues in this
case reflect the type of disagreements as to the meaning of policies and
regulations that military judges decide on a daily basis without concern
for the career impact on themselves, regardless of the role of senior commanders
or judge advocates in crafting those policies or regulations.
Based upon the nature of the issues at stake,
the full disclosure by the military judge on the record of his background
and approach to the case, and the opportunity provided to the defense to
voir
dire the military judge, we are confident that appellant received
a fair trial presided over by an impartial military judge and that a reasonable
observer with knowledge of all the facts would not question the military
judges impartiality.
Each such case must be assessed on its own
merits. Other facts and circumstances might call for a different approach.
We have recognized the possibility that judicial officials may have relationships
which cast suspicion upon their fairness or impartiality, and which provide
a basis to seek that judges disqualification. Compare United
States v. Crider, 21 USCMA 193, 196, 44 CMR 247, 250 (1972), with
United States v. Hurt, 9 USCMA 735, 753, 27 CMR 3, 21 (1958). There
may be cases in which the ruling by a military judge on an issue would
have such a significant and lasting adverse direct impact on the professional
reputation of a superior for competence and integrity that recusal should
be considered. Few disagreements as to an issue of law are likely to fall
in that category.
We hold that appellant was provided her constitutional,
statutory, and regulatory rights to an impartial military judge. There
were neither specific grounds to disqualify this military judge, nor any
other grounds upon which this military judges impartiality might reasonably
be questioned.
We also reject appellants claim that she was
denied due process because she was not tried by a military judge from another
service. She had an impartial judge. The fact that in one other case, an
Air Force supervisory judge decided to use another service military judge
out of an abundance of caution does not establish a legal requirement that
the same be done for appellant; nor does it establish a binding requirement
in all future cases. We would not want to discourage judicial and military
justice officials from taking appropriate action to moot potential appellate
issues. Absent a showing that such action was taken in a manner that created
a pattern of discrimination against enlisted persons or that it was taken
for the purpose of discriminating against a suspect class, we conclude
there is no merit to appellants claim that she was denied due process.
 


II.PEREMPTORY CHALLENGE
A. The Factual Background
 
Appellants trial was convened with a panel consisting
of five members. Major Fox was the only female detailed to the court. The
voir
dire did not reveal any grounds to challenge Major Fox for cause. Trial
counsel exercised the Governments peremptory challenge against Major Fox.
Defense counsel requested that trial counsel articulate a gender-neutral
reason for the peremptory challenge. Without prompting from the military
judge, trial counsel offered two reasons for exercising the peremptory
challenge against Major Fox: (1) Major Fox had "far greater court-martial
experience than any other member," and trial counsel "did not want the
possibility of her using that experience to dominate the panel and therefore
having a panel of one instead of five"; and (2) as a commander, Major Fox
recently had disputes with the legal office, and trial counsel was concerned
with potential "animosity" carrying over to the case. Defense counsel requested
specifics on the nature of the disagreements with the legal office. The
military judge, however, stated, "They dont have to. They gave me a neutral
reason. The peremptory challenge is granted."
 


B.Governing Legal Principles
Both federal civilian trial and court-martial
practices condemn the discriminatory use of peremptory challenges. To ensure
that justice is not tainted by purposeful discrimination, both jurisdictions
have adopted procedures designed to permit challenges to discriminatory
use of peremptory challenges and to make a public record reflecting the
proper, nondiscriminatory use of peremptory challenges. See Purkett
v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995); Batson
v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); United
States v. Greene, 36 MJ 274 (CMA 1993); United States v. Santiago-Davila,
26 MJ 380 (CMA 1988). The right to challenge discriminatory use of peremptory
challenges exists whether or not an accused is of the same race as the
challenged juror; an accused may assert the equal protection rights of
an excluded juror. Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364,
113 L.Ed.2d 411 (1991). Discriminatory use of peremptory challenges is
harmful to justice regardless of which party exercises that challenge.
See
Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33
(1992).
The rationale and procedures developed under
Batson
also are applicable to peremptory challenges based upon gender.
J.E.B.
v. Alabama ex rel T.B., 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89
(1994). We have specifically extended the holding in J.E.B. to court-martial
procedure. United States v. Witham, 47 MJ 297 (1997),
cert. denied,
522 U.S. 1115 (1998); see also United States v. Ruiz,
49 MJ 340 (1998).
In view of the differences between a civilian
jury and a court-martial panel, there are some differences between military
and civilian practice in terms of litigating a Batson issue. In
civilian courts, the objecting party must make "a prima facie case of purposeful
discrimination," Batson 476 U.S. at 93-94, whereas in military courts
no prima facie showing is required where the accused is of the same
racial group or gender as the challenged member. See United States
v. Moore, 28 MJ 366, 368 (CMA 1989); United States v. Ruiz,
supra.
We have also found that the differences between
civilian trials and courts-martial practice warrant a different standard
for assessing the validity of race-neutral reasons offered in support of
a peremptory challenge. In United States v. Tulloch, 47 MJ 283 (1997),
we held that in view of the convening authoritys power of selection of
court-martial members on the basis of the criteria in Article 25(d)(2),
UCMJ, 10 USC § 825(d)(1), military counsel must articulate a reasonable
racially neutral explanation that is not "implausible, or that otherwise
makes no sense." Tulloch, supra at 287.
 
 


C. Discussion
Trial counsel offered two reasons for striking
Major Fox: (1) her "far greater court-martial experience . . . and the
government did not want the possibility of her using that experience to
dominate the panel," and (2) a dispute with the legal office that trial
counsel did not want to "spill over to this case." Because both reasons
are facially gender neutral, we are not dealing with a situation such as
that presented in Greene, 36 MJ at 282, where one of the explanations
offered by trial counsel revealed patently impermissible discrimination.
Were such a circumstance to exist, we would not shelter purposeful discrimination
under the umbrella of a separate proper basis for a peremptory challenge.
Appellant urges that trial counsels first
asserted reason (prior court-martial experience) for striking Major Fox
was unreasonable. The Court of Criminal Appeals questioned the validity
of this reason, noting that Major Foxs experience as a court member was
"directly related to her experience and judicial temperament, two of
the specific statutory criteria the convening authority must consider when
selecting court members." The court, however, sustained the peremptory
challenge on the basis of the second, separate reason set forth by trial
counsel. Unpub. op. at 5-6.
Because trial counsel's first asserted reason
was not facially discriminatory, we may confine our consideration to trial
counsel's second reason, which referred to a recent dispute between Major
Fox and the legal office. Although it might have been helpful for the military
judge to permit further testimony concerning the details of the underlying
dispute between Major Fox and the legal office, we cannot say that his
failure to do so constituted an abuse of discretion. Trial counsel's reference
to a dispute between the member and the legal office set forth a reasonable,
gender-neutral basis for the peremptory challenge. We find nothing in this
record to undermine trial counsels basic assertion that Major Fox had
had a disagreement with the legal office. That fact, and the articulated
concern that Major Fox might harbor a lingering animosity toward the legal
office, constituted a valid reason for the peremptory challenge.
When the proponent of a peremptory challenge
responds to a Batson objection with (1) a valid reason and (2) a
separate reason that is not inherently discriminatory and on which the
opposing party cannot demonstrate pretext, the denial of the Batson
motion may be upheld on appeal. This is such a case.
 
 


III. DECISION
The decision of the United States Air Force
Court of Criminal Appeals is affirmed.
FOOTNOTES:
1 In the appeal
to our Court, appellant has not challenged the propriety of the forwarding
and referral of charges.
2
Current version codified at 10 USC § 826.
3
Current version codified at 10 USC § 851.
4
Other provisions of the 1968 legislation that enhanced the powers of the
trial judiciary, and which remain in effect, included amendments to: Art.
16, UCMJ, 10 USC § 816 (authorizing judge-alone trials in special
and non-capital (Art. 18, UCMJ, 10 USC § 818) general courts-martial);
Art. 19, UCMJ, 10 USC § 819 (precluding adjudication of a bad-conduct
discharge by a special court-martial unless a military judge presided,
with limited exceptions); Art. 39(a), UCMJ, 10 USC 839(a) (authorizing
sessions without the panel members present in which the military judge
may arraign the accused, receive pleas, dispose of motions and other interlocutory
matters, and conduct similar proceedings); Art. 41, UCMJ, 10 USC §
841 (assigning responsibility to the military judge for ruling on challenges
against members or the judge); Art. 49, UCMJ, 10 USC § 849 (authorizing
the military judge to rule on the propriety of depositions); Art. 51 (providing
for the military judge to instruct the court-martial panel on issues of
law and to rule finally on questions of law and virtually all interlocutory
matters); and Art. 54, UCMJ, 10 USC § 854 (assigning responsibility
for authentication of the record to the military judge).
5
This limitation does not apply in the rare instance that either the President
or Service Secretary would serve as the convening authority. Art. 26(c).
6
The Army has recently established a regulatory system of tenure. See
paras. 8-1g and 13-12, Army Regulation 27-10, "Military Justice" (20 August
1999).
7See
n.5, supra.
8
Subsequently, Congress in 1989 enacted Article 6a, UCMJ, 10 USC §
806a, which requires the President to prescribe procedures governing investigation
and disposition of matters concerning the fitness of military judges. The
legislative history notes that the procedures, "to the extent consistent
with the [UCMJ], ... should emulate the standards and procedures that govern
investigation and disposition of allegations concerning judges in the civilian
sector." H.R. Conf. Rep. No. 331, 101st Cong., 1st Sess. 659 (1989).


Chief Judge CRAWFORD (concurring in part and
in the result):
I concur with Part I of the opinion. As my
colleague's excellent historical analysis demonstrates, if there is any
"tension" created by the necessity of placing military judges within an
officer personnel structure, I am fully confident that their judicial independence
will allow them to make any and all rulings that are necessary in the interests
of justice.
As I said in my dissent in United States
v. Tulloch, 47 MJ 283, 289 (1997), our Court is bound by Supreme Court
precedent. When challenged by defense counsel to articulate a gender-neutral
reason for the peremptory challenge of Major Fox, trial counsel responded
with two gender-neutral reasons. Nothing more was required. See
Purkett v. Elem, 514 U.S. 765 (1995). Trial counsel's explanations,
that Major Fox had "far greater court-martial experience than any other
member" and had been engaged in disputes with the legal office, are attributes
that are not characteristic of either gender. I have also been unable to
discover any differences between civilian trials and courts-martial that
would cause me to eschew the standards set forth by the Supreme Court and
create a new test for assessing the validity of race or gender neutral
reasons offered in support of any peremptory challenge. Accordingly, I
disassociate myself from any test that examines the genuineness of a peremptory
challenge in a manner other than as set forth by the Supreme Court in Purkett
v. Elem, supra.


SULLIVAN, Judge (concurring in part and in
the result):
I join Chief Judge Crawfords separate opinion
in this case. I too would hold that Purkett v. Elem, 514 U.S. 765
(1995), controls the granted issue and that it was satisfied in this case.
See
United States v. Tulloch, 47 MJ 283, 289 (1997) (Sullivan, J., dissenting).


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