The appellant, a specialist in the U.S. Army, was charged with multiple sexual assault offenses and a false official statement. During voir dire at his court-martial, he challenged the selection of Sergeant First Class (SFC) Bravo as a panel member, arguing actual and implied bias based on SFC Bravo’s statements regarding soldiers who retain civilian defense counsel. The military judge denied the challenges, and SFC Bravo participated in the panel that convicted the appellant.

On appeal, the United States Army Court of Criminal Appeals (CCA) affirmed the conviction. However, the Court of Appeals for the Armed Forces (CAAF) reviewed the case and determined that while the military judge did not abuse discretion regarding actual bias, SFC Bravo’s responses during voir dire created a close case of implied bias. Under the liberal grant mandate, which requires excusing panel members in close cases to maintain public confidence in the fairness of military justice, CAAF held that the military judge erred. Consequently, the CAAF reversed the CCA’s judgment.

This case is a good primer for military defense counsel.

1. Actual Bias
The court holds that the military judge did not abuse his discretion in rejecting the challenge for actual bias. Military judges are given “great deference” in these determinations, as they are best positioned to assess the demeanor and credibility of potential panel members during voir dire. In this case, despite the absence of explicit findings on SFC Bravo’s demeanor and credibility, the military judge’s decision was based on Bravo’s assurance of fairness. The precedent cases (United States v. Youngblood and United States v. Terry) support the conclusion that a military judge’s assessment of a panel member’s sincerity carries substantial weight. Since there is no evidence in the record that significantly undermines the military judge’s ruling, the appellate court finds no abuse of discretion.

Analysis

The court’s reasoning is grounded in established military jurisprudence, which prioritizes the firsthand observations of the trial judge during voir dire. The deference given to the military judge aligns with prior case law, reinforcing the principle that appellate courts should not overturn a trial judge’s credibility determinations absent clear error.

However, the absence of explicit findings on demeanor could be seen as a weakness in the ruling. While precedent acknowledges that implicit credibility findings are permissible, a more detailed record would have strengthened the decision’s defensibility on appeal. Nonetheless, the ruling underscores the judiciary’s trust in trial-level assessments of impartiality, absent compelling contradictory evidence.

2. Implied Bias Determination

1.  Failure to Explain Implied Bias Reasoning – The military judge did not distinguish between actual and implied bias and failed to provide a clear record of legal analysis.
2. Mistaken View of Facts – The judge incorrectly concluded that SFC Bravo only noted an “outside perception” of civilian defense counsel, whereas Bravo actually expressed a personal belief.
3. Lack of Proper Inquiry – The judge did not sufficiently probe SFC Bravo’s potentially prejudicial views or clarify his statements.
4. Failure to Instruct or Rehabilitate – Unlike United States v. Napolitano, where a biased panel member was properly educated on the law and recanted their views, no such effort was made here.
5. Inadequate Rehabilitation – SFC Bravo’s assertions of impartiality were in response to leading questions, and he never recanted his belief that hiring civilian counsel was “unusual.” 

Because the military judge did not apply the liberal grant mandate, the court concludes that the failure to excuse SFC Bravo undermines the fairness of the court-martial panel.

Legal and Analytical Evaluation

The appellate court’s ruling reinforces the principle that implied bias is assessed based on how an objective observer would perceive fairness in the proceedings. This decision is grounded in case law (Keago, Clay, Rogers) and highlights several key legal considerations:

1.  Distinction Between Actual and Implied Bias – The military judge conflated the two standards, which require separate legal analyses. While actual bias focuses on subjective impartiality, implied bias is about public confidence in the fairness of the system. The judge’s failure to recognize this distinction weakened his ruling.
2. Liberal Grant Mandate – Military judges must err on the side of excusing panel members in “close cases” to preserve the integrity of courts-martial. The failure to do so constitutes reversible error (Keago, 84 M.J. at 375).
3. Insufficient Inquiry and Rehabilitation – The judge’s failure to clarify or challenge SFC Bravo’s statements left room for doubt about his impartiality. The absence of proper judicial questioning and instructional guidance meant that potential biases remained unaddressed. Unlike in Napolitano, where rehabilitation was successful, the lack of intervention here allowed bias to persist.
4. Impact on the Fairness of the Court-Martial – The ruling emphasizes that SFC Bravo’s views could have led an objective observer to doubt the impartiality of the panel. This is critical because military justice requires heightened scrutiny to ensure fairness and avoid even the appearance of impropriety.

Conclusion

The appellate court’s decision is well-reasoned and aligns with military legal principles regarding voir dire and panel member impartiality. The ruling highlights the necessity of a clear record, proper legal analysis, and the liberal grant mandate in implied bias cases. The military judge’s failure to excuse SFC Bravo constitutes reversible error, underscoring the importance of procedural rigor in ensuring fair trials in courts-martal.

Do you have this issue at trial or on appeal. The military defense counsel at Cave & Freeburg, LLP, have the knowledge and experience to analyse your jury / Members problem.

We granted review to determine whether the military judge abused his discretion in denying Appellant’s challenge for cause against Captain (Capt) Stojka, who sat with his subordinate on a court-martial panel composed of three members. We hold that the military judge did not err in denying the challenge for cause.

First the opinion reviews the general for challenges. The court then got into the meat of the issue.

[T]here is no per se rule that a military judge must dismiss a member “predicated solely on the fact that a senior member of the court-martial is involved in writing or endorsing the effectiveness reports of junior members.” United States v. Murphy, 26 M.J. 454, 456 (C.M.A. 1988); accord United States v. Wiesen, 56 M.J. 172, 175 (C.A.A.F. 2001). And second, there was no other evidence in the record indicating implied bias from the ratings relationship that would cause the knowledgeable member of the public to perceive that the accused’s court-martial panel was not fair and impartial. See Townsend, 65 M.J. at 463.

I think part of the court’s reasoning relies on the issue not being properly preserved.

[A]t the time of Appellant’s challenge for cause, only half of the panel was involved in any senior subordinate relationship because Appellant had not yet exercised his peremptory challenge on GySgt Hightower. Appellant also did not object to the final composition of the three-member panel on the basis that it violated Wiesen. As such, we review the military judge’s denial of the challenge from the perspective of when Appellant objected and the military judge pronounced his ruling, not with hindsight and knowledge of the final composition of the panel.

The dissent makes more of the reality about life in a company sized organization where, as here, the commander and the senior enlisted person made up two-thirds of the panel that ended up trying Bagstad. The dissent also takes issue with the majority construction of a “waiver,” or as Judge Baker says, the failure to make “the Gunny objection.”

Before I begin an interview, especially with a complaining witness in sexual assault case, I want to know about that person. At the first contact, and from then on, I constantly assess the person: their emotions, their physical and emotional responses, their word choice, their mannerisms. I’m doing that because I want to establish rapport. (You should of course do the same to the client.) I’ve said this many times, but I’ve frequently been the one to educate the prosecution witnesses on the process and what’s going on and why. That has benefitted me and my client numerous times. The “victim” appreciates you for telling them what’s going on. I cannot remember how many times a “victim” tells me that no one will tell them what’s going on. Defense counsel — this is your moment to establish rapport.

If you establish rapport with a witness you will get more information, the witness will respond better to you, and the witness may be less antagonistic to the client. I had not realized that at least one author calls this “isopraxis.” I know it as mirroring.

Whether preparing for an interview or meeting with an informant, investigators should spend a significant amount of time planning for the most important part of any human interaction—creating and building rapport. Consistently building rapport with various individuals of different genders and ages who represent diverse backgrounds, educational levels, experiences, ethnicities, and mental health concerns proves challenging to many law enforcement professionals. Everyone has their own personality and preference for how they like to give and receive information. One of the most powerful and proven ways of establishing rapport is isopraxis, or mirroring another’s behavior. [See, Joe Navarro, What Every Body Is Saying (New York, NY: Harper Collins, 2008), 27, 90.] From the time people are born, they learn to share mirroring behaviors. . . . People find comfort in and, therefore, seek mirroring behaviors. They also discover solace in processing information presented consistent with their personality and preferences. Personality mirroring corresponds with nonverbal mirroring—it tries to match the thought process and style of communication a person prefers. Some people like to socialize as part of the communication process, while others prefer a more direct, task-oriented tact. People tend to favor information that they receive in a pleasing manner, and, consequently, they become more attentive and receptive. Studies have shown that individuals have different personality types for processing information, as well as preferences for how they give and receive information. Investigators who assess for such traits can effortlessly mirror communication styles to conduct more effective interviews and better develop informants. To demonstrate this concept, the authors offer an overview of a law enforcement professional’s attempts to develop a source and his partner’s assistance in doing so.

The rapport building method is not limited to witness interviews. To some extent voir dire is a process of building rapport, as can be cross-examination, direct examination. Gauging who you are dealing with is all part of situational awareness in case preparation and court-room presentation.

Here is the link to Dreeke and Navarro, Behavioral Mirroring in Interviewing, FBI Law Enforcement Bulletin, December 2009.

Conclusion The challenge that Wilson faced often occurs in the law enforcement profession. Investigators encounter individuals with whom they just cannot seem to make a connection or develop rapport, not only during the interview but in human source development as well. Analyzing people for particular personality and communication styles and then mirroring those traits can prove key when investigators attempt to build relationships. Law enforcement personnel who use this behavioral tool will foster stronger rapport and glean valuable information in the furtherance of their cases.

Here’s a link to Mark Bennett, 16 Simple Rules for Better Jury Selection, 22(1) The Jury Expert, Jan. 2010. The highly entertaining Bennett has some interesting rules: The Shrek Rule, the Blind Date Rule, and the Beer Pong Rule. Behind the entertaining naming there is value in what he says, it’s just better than a boring ol’ textbook.