                             UNITED STATES, Appellee

                                            v.

                    Paul A. RICHARDSON, Lance Corporal
                  United States Marine Corps, Appellant

                                      No. 04-0218
                            Crim. App. No. 200101917

       United States Court of Appeals for the Armed Forces

                             Argued November 9, 2004

                               Decided May 20, 2005

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

                                         Counsel


For Appellant: Captain Rolando R. Sanchez, USMC (argued);
Lieutenant Elysia G. Ng, JAGC, USN (on brief).


For Appellee: Lieutenant Guillermo J. Rojas, JAGC, USNR
(argued); Colonel M. E. Finnie, USMC, Commander C. N. Purnell,
JAGC, USN, and Lieutenant Frank L. Gatto, JAGC, USNR (on brief).



Military Judge: J. F. Havranek



        THIS   OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Richardson, No. 04-0218/MC


       Judge BAKER delivered the opinion of the Court.

       Appellant was tried by a general court-martial composed of

officer members.       Contrary to his pleas he was convicted of

possessing 52.4 pounds of marijuana with the intent to

distribute and importing that marijuana into the United States

in violation of Article 112a, Uniform Code of Military Justice

(UCMJ), 10 U.S.C. § 912a (2002).            The adjudged and approved

sentence included a dishonorable discharge, confinement for

eight years, forfeiture of all pay and allowances, and reduction

to the lowest enlisted grade, E-1.           Citing United States v.

Tardif, 57 M.J. 219 (C.A.A.F. 2002), the United States Navy-

Marine Corps Court of Criminal Appeals approved the findings,

but granted Appellant four months of confinement relief on the

sentence for unreasonable post-trial delay in the review of his

case.     United States v. Richardson, NMCCA 200101917 (N-M. Ct.

Crim. App. Aug 22, 2003) (unpublished).

                                      Background

        Appellant challenges the composition of his court-martial

panel on the ground of implied bias.1           In particular, he argues

the military judge erred in not excluding three members for

1
    We granted review of the following compound issue:

        WHETHER THE LOWER COURT ERRED WHEN IT DETERMINED THAT THE MILITARY
        JUDGE DID NOT ABUSE HIS DISCRETION DURING VOIR DIRE BY APPLYING AN
        “ACTUAL BIAS” STANDARD TO DENY THE DEFENSE’S THREE “IMPLIED BIAS”
        CHALLENGES AND BY PREVENTING THE DEFENSE FROM FULLY DEVELOPING THE
        FACTS TO SUPPORT THE CHALLENGES TO MEMBERS WHO WERE OR HAD BEEN TRIAL
        COUNSEL’S CLIENTS.


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United States v. Richardson, No. 04-0218/MC


cause who had current or prior professional contacts with the

trial counsel, Captain (Capt) M. P. Gilbert.   In support of this

argument, he contends that the military judge incorrectly

applied the standard for actual bias to his challenges for cause

rather than the standard for implied bias.    In the alternative,

Appellant argues the military judge erred by refusing to reopen

voir dire to afford defense counsel the opportunity to further

question the challenged members in order to test whether any of

them should be excused on the ground of implied bias.

     During voir dire, four of the original ten members

indicated some previous professional contact with the trial

counsel:   Lieutenant Colonel (LtCol) K. P. Spillers, a squadron

commanding officer; LtCol P. B. Coz, a group commanding officer

(CO); LtCol S. Heywood, a group operations officer; and Major

(Maj) P. F. Callan, a squadron executive officer (XO).    The

following exchange occurred between LtCol Spillers and the

military judge:

     Q.    How is it that you know Captain Gilbert?
     A.    He’s the group legal officer. And I’ve communicated
           with him for legal advice from time to time.

     Q.    Is there anything about your knowledge of him that’s
           going to cause you to either look at this case either
           more favorably or disfavorably . . . than anything
           else?
     A.    No.




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United States v. Richardson, No. 04-0218/MC


Although defense counsel’s voir dire of this member was lengthy,

his questions did not address the member’s prior contact or

relationship with trial counsel.

     The military judge’s relevant questions to LtCol Coz were:

     Q.   You said that you know Captain Gilbert. How is it that
          you know him?
     A.   Captain Gilbert is the -– I’m the CO of PASD and MAG
          [Marine Aircraft Group]-39. And I have had some legal
          problems that I discussed with Captain Gilbert.

     Q.   Is your relation with Captain Gilbert -– would that
          affect you in any way or the way you evaluate either
          side’s case?
     A.   I don’t believe so, no.

Defense counsel was afforded the opportunity to question this

member as well.   However, none of counsel’s questions touched on

the member’s professional relationship with the trial counsel.

     The exchange between the military judge and LtCol Heywood

on the issue follows:

     Q.   You also said, sir that you know Captain Gilbert. How
          is it that you know him?
     A.   Just professional discussions regarding legal matters
          when I was the XO of 367, like over the phone a couple
          of time [sic].

     Q.   Is there anything from your relationship or your
          knowledge of Captain Gilbert that’s going to cause you
          to view the government’s case either more favorably or
          less favorably than the defense case?
     A.   No.

After the military judge’s inquiry, defense counsel was afforded

the opportunity to question the member.   Although defense

counsel questioned this member as to several aspects of his



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United States v. Richardson, No. 04-0218/MC


background, he did not inquire into the member’s professional

relationship with the trial counsel.

     The relevant portion of the military judge’s inquiry of Maj

Callan, the fourth member to indicate previous professional

contact with the trial counsel, follows:

     Q.   You said that you know Captain Gilbert. How is it that
          you know him?
     A.   In my capacity as an Executive Officer at the squadron.
          I deal mostly –- I’m over the phone with him sometimes
          for advice and counsel on some of the legal matters
          that we have in the squadron.

     Q.   Do you think that your relationship with him is going
          to effect [sic] the way you would view his case or the
          government’s case either whether it would be more
          favorably or less favorably than say the defense case?
     A.   Not at all.

In contrast to the three previous members, when allowed to

question this member, defense counsel explored the member’s

relationship with trial counsel.       Portions of the colloquy

between the two follow:

     Q.   You’re currently the executive officer of a squadron?
     A.   Yes, sir.

     Q.   And how long have you been in that special position?
     A.   A year and a half.

     Q.   And for how long during that period of time has the
          trial counsel been the advisor to your squadron?

     . . . .

     A.   Four to six months at the most.

     Q.   Okay. In that capacity, he comes to you and to the
          Commanding Officer and sometimes to him or to you



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United States v. Richardson, No. 04-0218/MC


          depending and he provides you advice regarding cases of
          Marines in your unit. Is that correct?
     A.   In almost all cases it’s us contacting him.

     . . . .

     Q.   But once that [the Request for Legal Services] is sent
          down to the Legal Team Echo, where the Captain resides,
          he becomes your advisor on these cases?
     A.   Correct.
     Q.   And that advice extends depending on the cases or
          whether this -– what forum these ought to go to:
          Should it go to an Article 32 [UCMJ, 10 U.S.C. § 832
          (2000), investigation]?   Should it go to a special
          [court-martial]? And often times during the course
          perhaps having referred it to a special providing
          guidance regarding other matters.
     A.   It goes -- could be matters which we talked, but in my
          particular experiences dealing with specifically with
          the Captain, they were just interpretation on legal
          matters and legal policy, not necessarily or
          specifically about types of court-martial -– courts-
          martial.

     Q.   He provides you guidance on pretrial agreements. The
          buck ends either at your desk or CO’s desk, but he does
          provide you guidance. Is that true?
     A.   If I asked him at [sic] question, I’m sure he would. I
          don’t specifically remember ever asking him a question
          about pretrial agreements.

     Q.   If you had an Article 32, he would perhaps provide you
          some advice as to whether the case was won, whether he
          thought he could win, whether it would do well at the
          general court-martial?
     A.   It would be speculation on my part about whether he
          would provide or could provide –-

     Q.   You’ve not had one?
     A.   No.

     Q.   Okay. You call him up and -- from time to time and
          say, I’ve got a case. And I’m a little perplexed by
          it. And I’d like to get your cut at it?
     A.   That would be the nature of it. It’s always general in
          nature.



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United States v. Richardson, No. 04-0218/MC


     . . . .

     Q.   How many times a week or a month -- you pick the period
          to make it reasonable -– would you say you talk to
          Captain Gilbert relating to legal matters?
     A.   Once a month.

     Q.   Okay. Is that because you have a few cases?
     A.   No. Because probably the majority of the communication
          is between the legal officer and Captain Gilbert. And
          I’ll specifically -– I only call if I have additional
          questions or clarification that I require.

     . . . .

     Q.   Has Captain Gilbert been a good legal advisor?
     A.   Yes, sir.

     Q.   Would you describe him as a trusted legal advisor?
     A.   Yes.

     Q.   Have you had occasion to be in positions in other units
          where you’ve had to go out and get legal advice from
          someone like Captain Gilbert?
     A.   No.


At the close of voir dire civilian defense counsel asked to

“briefly recall three of the members” to allow him “to look at

and to expand on . . . the issue with the relationship with the

trial counsel.”   In particular, defense counsel stated:

     I want to sure [sic] that the evidence is fully developed
     under [Rule for Courts-Martial (R.C.M.)] 912(1)(f)(N). . .
     . This is a special relationship in which the trial
     counsel, in particular, should we have a conviction and we
     get on to sentencing, is going to be in the posture of
     effectively making a recommendation to persons to whom he
     makes recommendations regularly, who presumptively believe
     that he is a wise counsel, and who rely on his counsel.
     That gives me some pause.




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United States v. Richardson, No. 04-0218/MC


The military judge denied this request stating, “All the members

that have said that they know Captain Gilbert said that they

would not give him any special deference whether for or against

him.   I trust them on their word and what they’ve said . . . I

think there’s been enough that’s been brought out.”

       Following this ruling, defense counsel challenged a total

of seven members for cause, including the four who had indicated

prior contact or a professional relationship with the trial

counsel.   Specifically, he challenged five members on the basis

of implied bias, the four mentioned above and one other because

LtCol Heywood was his reporting senior (Maj D. A. Sobyra).    He

challenged the two other members because they were the

commanding officer and the executive officer of the same unit

(LtCol C. W. Hocking and Maj S. B. Frosch).   When asked by the

military judge if he wished to be heard on the challenges, trial

counsel made the following remarks with respect to the members

with whom he had had previous professional contact:


       Lieutenant Colonel Spillers has been talked to I think on
       almost three occasions. On these three occasions, it’s
       dealt with a hazing issue and one [JAG Manual
       investigation].

       Lieutenant Colonel Coz, I think, I’ve talked to him about
       three or four times.

       Lieutenant Colonel Heywood, I don’t remember ever seeing
       that individuals [sic] face, Your Honor, I’m sure if he
       says that he talked to me over the telephone I talked to
       him.


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United States v. Richardson, No. 04-0218/MC



     Major Callan, I’ve heard of him but never met him in
     person. I have -– I’m assuming talking to him over the
     phone . . . . I typically deal directly with Lieutenant
     Colonel Veyna. And for the most extent I deal with the CO
     of the MAG which is Colonel Jensen. So my contact with
     these individuals is limited, Your Honor. And with that we
     would ask that you deny that motion for challenge for cause
     on that ground.

After hearing from trial counsel the military judge made the

following ruling:

     Now, as to those I denied challenges for cause, it may be
     just as easy to explain why I granted the challenges for
     cause for the other ones to explain why I did not grant
     Lieutenant Colonels Coz, Heywood, Hocking, or Major Callan.

     As to Major Sobyra in taking in consideration everything
     that he answered to concerning implied bias he has three
     family members who’ve all been law enforcement, one [his
     brother] specifically is involved at the border and with
     law enforcement. Here he has a reporting senior as a
     member on the panel as well as the close friend that he’s
     had for a number of years and specifically that his brother
     was involved as I noted in law enforcement activity that is
     directed towards the border.

     As to Major Frosch, I considered the fact that he said it
     would be a distraction for either he or Lieutenant Colonel
     Hocking that they are the CO and XO and that it could be a
     distraction from this court-martial if they both remained
     on. So in granting him, I denied Lieutenant Colonel
     Hocking because that seemed to be the only basis for
     Lieutenant Colonel Hocking. So my reasoning is: I granted
     to Major Frosch and denied to Lieutenant Colonel Hocking.

     Lieutenant Colonel Spillers in considering an implied bias,
     I took a number of factors into consideration: His
     extensive workings with the JTF-6 [Joint Task Force Six]
     for a two year time period. The fact that he currently has
     friends that are working in drug interdiction involved in
     JTF-6 and then to a very lesser degree his dealings with
     the trial counsel, Captain Gilbert.




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United States v. Richardson, No. 04-0218/MC


      As for Lieutenant Colonel Coz, I did not find that there
      was an implied bias because I did not find such significant
      aspects as I did with the other members who I did grant the
      challenge for cause.

      The same would be true for Lieutenant Colonel Heywood and
      for Major Callan. I did not believe that there was an
      implied bias that exists in there. And in making that
      determination, I specifically relied upon their answers
      here in court and they’re [sic] demeanor as I observed it
      in their answering. I believe that they said that they
      could follow the instructions as I gave them. And they
      would not give deference to either side.

After the military judge’s ruling, three of the four members who

originally indicated a prior professional relationship with the

trial counsel remained on the final panel of six members.2

      The Government’s argument is that the military judge did

not err because the record discloses a lengthy exchange during

voir dire, in which the military judge, the parties, and the

members participated, and which included discussion of trial

counsel’s legal support to four of the members.            In particular,

the officers in question all responded that they would be

impartial in their consideration of trial counsel’s arguments.

Further, the Government notes, the military judge granted three

of Appellant’s challenges for cause, including two on the ground

of implied bias.     Thus, the military judge demonstrated a

willingness to excuse members when warranted.           Finally, the

Government contends that the professional relationships at issue

here are more tangential than the social relationship between
2
  Defense counsel exercised his peremptory challenge against another member
reducing the final panel to six members.


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United States v. Richardson, No. 04-0218/MC


the trial counsel and a member in United States v. Downing, 56

M.J. 419 (C.A.A.F. 2002), a case affirmed by this Court.

                              Discussion

        “As a matter of due process, an accused has a

constitutional right, as well as a regulatory right, to a fair

and impartial panel.”    United States v. Wiesen, 56 M.J. 172, 174

(C.A.A.F. 2001).    R.C.M. 912(f)(1)(N) provides that 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.”    In furtherance of this rule,

military judges are required to test the impartiality of

potential panel members on the basis of both actual and implied

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

reviewed for an abuse of discretion.       United States v.

Armstrong, 54 M.J. 51, 53 (C.A.A.F. 2000).       Military judges are

afforded a high degree of deference on rulings involving actual

bias.    See Wiesen, 56 M.J. at 174.   By contrast, issues of

implied bias are reviewed under a standard less deferential than

abuse of discretion but more deferential than de novo.        United

States v. Strand, 59 M.J. 455 (C.A.A.F. 2004).       As we have often

stated, “implied bias is reviewed under an objective standard,

viewed through the eyes of the public,” United States v.

Napoleon, 46 M.J. 279, 283 (C.A.A.F. 1997), and it is intended


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United States v. Richardson, No. 04-0218/MC


to address the perception or appearance of fairness of the

military justice system.    Wiesen, 56 M.J. at 174.    Actual bias,

on the other hand, tests the expressed views of members.

Challenges for actual or implied bias are evaluated based on a

totality of the circumstances.    See Strand, 59 M.J. at 459.

        The procedural vehicle for testing for member bias is voir

dire.    “Voir dire examination serves to protect [the right to a

fair trial] by exposing possible biases, both known and unknown,

on the part of potential jurors.”      McDonough Power Equipment,

Inc. v. Greenwood, 464 U.S. 548, 554 (1984).      “Generally, the

procedures for voir dire are within the discretion of the trial

judge.”    United States v. Jefferson, 44 M.J. 312, 318 (C.A.A.F.

1996).    R.C.M. 912(d) provides that:

        The military judge may permit the parties to conduct the
        examination of members or may personally conduct the
        examination. In the latter event the military judge shall
        permit the parties to supplement the examination by such
        further inquiry as the military judge deems proper or the
        military judge shall submit to the members such additional
        questions by the parties as the military judge deems
        proper.

The discretion of the military judge, however, is not without

limits.    “The standard of review is whether there was a clear

abuse of discretion by the judge in denying individual or group

voir dire.”     Jefferson, 44 M.J. at 317 (internal quotation marks

and citations omitted).    In Jefferson, for example, this Court

reversed on the ground that the military judge failed to reopen



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United States v. Richardson, No. 04-0218/MC


voir dire so that defense counsel could inquire regarding two

members’ statements that they or a close friend or relative had

been a victim of crime.   We recognized that when it occurs to

counsel conducting the voir dire that further inquiry was

omitted on a critical issue, “judges should be patient and allow

that inquiry to be conducted.”   Id. at 322.

     Applying the law in this case, we agree with the Government

that the appellate record before us today does not demonstrate

grounds for removing LtCols Coz and Heywood on the basis of

implied bias.   With respect to these members, the record only

reflects that they knew the trial counsel based on his provision

of legal services to their commands and that the members stated

that their prior contact with counsel would not affect their

deliberations at Appellant’s court-martial.

     Defense counsel’s voir dire of Maj Callan presents a more

complete picture and a closer question of implied bias.    On the

one hand, like the other three potential members with prior

professional contact with trial counsel, Maj Callan also agreed

that his relationship with the trial counsel would not affect

whether he viewed the Government’s case more or less favorably

than the defense case.    And trial counsel stated, “I’ve heard of

him but never met him in person.”     On the other hand, Maj Callan

agreed trial counsel was “a good legal adviser” and “a trusted




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United States v. Richardson, No. 04-0218/MC


legal advisor,” which might suggest to a public observer a pre-

existing and favorable bond.

        However, we need not ultimately decide whether or not the

military judge erred with respect to defense counsel’s challenge

to Maj Callan on this record.    This is because we agree with

Appellant that the military judge erred by not conducting

further inquiry into the nature of the trial counsel’s

professional relationship with LtCols Heywood and Coz as well as

Maj Callan for the purpose of determining whether and how those

relationships might have implicated the doctrine of implied

bias.    In short, we do not have sufficient facts either to reach

this conclusion, or to preclude its possibility.

        The potential for concern is magnified in this context

because whatever the qualitative nature of trial counsel’s

professional relationships with these members, we do know that

much of the advice rendered was in the area of criminal law.

This raises the possibility that trial counsel may have already

established a rapport with three of the six members on criminal

matters or sentencing issues that might have arisen at

Appellant’s court-martial.    In such a context, the military

judge had a responsibility to further examine the nature of

relationships in the context of implied bias review,

particularly when asked to do so by defense counsel.    Thus, in

this case the appearance of a panel biased in favor of the trial


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United States v. Richardson, No. 04-0218/MC


counsel was heightened where three of the final members had

prior professional contact with trial counsel and the military

judge declined to explore fully, or to allow defense counsel to

explore fully, the nature of the prior professional contact.

     We recognize that in military practice, the qualitative

nature of the relationships between trial attorneys and officers

in the commands those attorneys advise will cover a wide range

of experiences.   Some officers, including commanders, and the

attorneys will establish a close personal and professional bond

based on shared experience, for example, combat service, or

regular garrison contact.   In other contexts, the contact may be

singular or passing; formal and professional, but not indicative

of special deference or bonding.      Moreover, in deployed

circumstances, one lawyer may have professional contact with

many, if not all, of the senior members of a command who might

serve as panel members within that command.     Thus, we decline to

adopt a per se ground for challenge, while at the same time

emphasizing the importance of thorough voir dire in such

circumstances.

     The present record tends to suggest formal and professional

relationships, but not ones marked by particular bonding

suggesting deference.    At this point, however, we do not

ultimately know where on the continuum these particular

relationships resided.   Further inquiry was warranted when


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United States v. Richardson, No. 04-0218/MC


requested by defense counsel.   Among other things, in this case,

further voir dire might have explored whether the members were

predisposed to crediting trial counsel’s views on the

application of the criminal law in Appellant’s case or his views

on sentencing over the views of the military judge or defense

counsel.   Alternatively, these panel members might simply have

viewed trial counsel as just another lawyer whom they were

required to consult in a prior context.   Regarding LtCol Coz,

for example, further voir dire might have determined what “the

legal problems” in question were and how they were resolved.      In

addition, trial counsel essentially was allowed to give an

unrebutted account of his professional relationship with Maj

Callan.    Further voir dire might have explored the difference

between Maj Callan’s perception of trial counsel as a trusted

legal adviser, and counsel’s statement that “I’ve heard of [Maj

Callan] but never met him in person.”

     Implied bias review is more than, as the Government

suggests, a question as to whether the members were honest when

they said they would be fair.   There is nothing in the record to

suggest otherwise.   Moreover, Appellant has not challenged on

the ground of actual bias.   But in the context of implied bias,

this case is not about the members’ integrity.   Taking into

account the military judge’s determination that the members were

truthful in their responses, the question is would the public


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United States v. Richardson, No. 04-0218/MC


nonetheless perceive the trial as being less than fair given the

nature of the prior and existing relationships between trial

counsel and certain panel members?

        Nor are we in a position to defer to the military judge’s

conclusions.    It is clear in the record that the military judge

considered implied bias in his ruling.    He stated so, and his

ruling followed lengthy argument by both counsel on implied

bias.    However, the record does not contain a statement of the

standard used by the military judge in his ruling or an

application of that standard.    Among other things, the military

judge’s ruling does not provide an explanation as to why and how

LtCol Spillers’s relationship with Capt Gilbert factored “to a

very lesser degree” into his grant for cause on the ground of

implied bias, but was not addressed or distinguished with

respect to LtCols Heywood and Coz or Maj Callan.     This is

particularly noteworthy because LtCol Spillers’s responses to

the military judge’s questions on this issue were almost

identical to those of LtCols Heywood and Coz.    As we stated in

Downing,     “[w]e do not expect record dissertations but . . .     a

clear signal that the military judge applied the right law.

While not required, where the military judge places on the

record his analysis and application of the law to the facts,

deference is surely warranted.”    56 M.J. at 422.




                                  17
United States v. Richardson, No. 04-0218/MC


     Finally, our opinion in this case should not be read to

necessarily bar the participation of members who might have had

previous or current official contact with the trial

participants.   To the contrary, we recognize that in a close-

knit system like the military justice system, such situations

will arise and may at times be unavoidable.    But where such

situations are identified, military judges should not hesitate

to test these relationships for actual and implied bias.    And a

factual record should be created that will demonstrate to an

objective observer that notwithstanding the relationships at

issue, the accused received a fair trial.    Member voir dire is

the mechanism for doing so.

                              Conclusion

     In this case the prior professional contacts between trial

counsel and three of the six seated members at appellant’s

court-martial, including conversations related to criminal law

matters, warranted further inquiry in light of defense counsel’s

challenges for implied bias and his request to conduct further

voir dire.   Moreover, unlike the defense counsel in Jefferson,

counsel in this case sought to ask additional questions while

voir dire was still ongoing.    Accordingly, we conclude that the

military judge abused his discretion by failing to apply the

correct legal standard for implied bias to the challenges of

LtCols Heywood and Coz and Maj Callan.     There was a further


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United States v. Richardson, No. 04-0218/MC


abuse of discretion in the denial of counsel’s request to reopen

voir dire in a case raising implied bias considerations.

                             Decision

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is reversed.     Ordinarily, we would order a

remand to that court with instructions either to supplement the

record with information regarding the three members at issue or

to order a hearing pursuant to United States v. DuBay, 17 C.M.A.

147, 37 C.M.R. 411 (1967).   However, we conclude that in this

case, further fact-finding offers little prospect of addressing

the considerations raised in this case.    Appellant’s court-

martial occurred over five years ago.    We conclude that it is

unfair to Appellant and to the officers concerned to ask those

officers to recall now under oath the circumstances of their

professional contact with trial counsel, and to do so in

sufficient detail to permit implied bias review.    The interests

of justice and the administration of military justice are better

served by deciding this case now, rather than by setting in

motion a further cycle of fact-finding and delay, which may in

the end fall short of applicable legal standards.

     The findings and sentence are set aside.     The record of

trial is returned to the Judge Advocate General of the Navy.      A

rehearing may be ordered.




                                19
