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Court of Appeals for the Armed Forces to Hear Army Mistrial Case

In September 2020, 1st Lieutenant Badders was tried at Fort Hood, Texas by a panel of officers. He was found guilty of one specification of sexual assault. While the members were deliberating on the case, the defense counsel became aware of an article published in several on-line news sources concerning a high-profile Soldier suicide at Fort Hood. A Public Affairs Officer was quoted in the article describing Operation Pegasus Strength, a campaign the command was undertaking to combat issues such as suicide, sexual assault, sexual harassment, and extremism at Fort Hood. This Public Affairs Officer was LTC B, a member on the panel deliberating in 1LT Badders’ case. The members asked the Military Judge to interrupt deliberations and voir dire LTC B about his comments in the article and the operation the command was spearheading. The Military Judge denied this request and the members then announced the guilty finding.

Following the court-martial, the defense counsel learned that while the court-martial was underway, LTC B had met with the Staff Judge Advocate, the Deputy Staff Judge Advocate, and the Chief of Justice for the command in order to formulate his response to the reporter concerning the article. The defense moved for a mistrial based upon LTC B’s involvement in Operation Pegasus Strength, his comments concerning “corrosives” facing the command, and his mid-trial meeting with the command legal officers. The Military Judge considered the motion based upon the two distinct criteria for disqualifying panel members. First, the Military Judge found that LTC B was not disqualified for actual bias against 1LT Badders. The Military Judge found his answers to voir dire questions in both 1LT Badders’ case and a subsequent court-martial were in line with the law and did not express bias against servicemembers accused of sexual assault.

The Military Judge then evaluated whether LTC B was disqualified for implied bias. Under this standard, a military judge determines whether a member of the public would perceive the court-martial as fair with this individual sitting on the panel. The Military Judge found that LTC B was disqualified for implied bias. She based her ruling on the meeting with the command legal officers in the middle of the court-martial and the Staff Judge Advocate’s failure to inform the attorneys of this meeting in time to allow for voir dire during the panel deliberations. The Military Judge granted the defense’s post-trial request for a mistrial.

The Government appealed this decision to the Army Court of Criminal Appeals under Article 62 of the Uniform Code of Military Justice. This provision allows the Government to appeal decisions that terminate the proceedings as to a specification or charge. Although the defense argued that this mistrial decision did not fit into the Article 62 statutory language, the Army Court found that it did have jurisdiction to review the Military Judge’s decision. The Army Court of Criminal Appeals then decided that the Military Judge abused her discretion in granting the mistrial and reversed her decision.

The Army Court determined that although a member of the public might find a court-martial unfair if they heard that only a member met with the command’s legal officers during trial, that a member of the public with full information concerning the situation would not. The Court pointed to the fact that LTC B and the legal officers were meeting in the course of their ordinary duties, were meeting concerning a time-sensitive matter, discussed a matter unrelated to 1LT Badder’s trial, and never mentioned the ongoing court-martial. After considering the totality of the circumstances, the Army Court of Criminal Appeals found that the Military Judge abused her discretion in granting a mistrial and that LTC B’s service as a panel member did not create too high a risk that the public would perceive 1LT Badder’s court-martial as unfair.

The Court of Appeals for the Armed Forces has now granted review in this case and will hear argument at the end of this month on the issue of whether or not the Army Court had jurisdiction under Article 62, UCMJ, to hear the Government’s appeal.

If you or your loved one is facing a court-martial or wants to appeal a court-martial conviction, you need someone with experience who knows the law. I have the experience you need. Please call Bill Cassara at (706) 445-2943 for a free consultation.

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