The Court of Appeals for the Armed Forces recently issued a decision in United States v. Keago. Midshipman Keago was charged with attempted sexual assault, sexual assault, burglary, and obstruction of justice related to the alleged sexual assaults of three other midshipmen from the US Naval Academy. He was found guilty of these offenses and sentenced to a dismissal, total forfeitures, and twenty-five years confinement.
At trial, the defense challenged fourteen potential panel members for actual and implied bias. Actual bias exists when a member will not act with impartiality based upon some personal bias that they hold. Implied bias exists when the public would perceive that the accused did not have a fair, impartial member panel for their court-martial. This standard is not based upon whether a potential member is actually biased, but whether a public that is familiar with the military justice system would think they were. A military judge has to consider both bases for challenge and to articulate the standard he applies and the facts he is considering when ruling on a challenge.
Additionally, military justice includes a “liberal grant mandate.” This mandate requires military judges to err on the side of the defense when considering challenges for cause. This added layer was created to address some of the unique features of the military justice system like the fact that the convening authority is the one who picks the members and that each side can only exercise one peremptory challenge to members.
In Midshipman Keago’s court-martial, the military judge struck six of the fourteen challenged members but kept eight of them. After his conviction, Midshipman Keago appealed the military judge’s decision on four of the members to the Navy-Marine Corps Court of Criminal Appeals. The Navy-Marine Corps Court upheld the findings and sentence, finding no error in the military judge’s decision on the challenged members.
Midshipman Keago appealed that decision to the Court of Appeals for the Armed Forces, arguing that three of the members demonstrated both actual and implied bias. The first member, a male Lieutenant Commander repeatedly expressed the belief that if the charges had reached the trial stage that “something happened.” He believed that easily disproven accusations would not have made it that far. He also made statements about wanting to hear Midshipman Keago testify and put on a case in his defense.
The second member challenged on this appeal was a female Lieutenant Commander who expressed an opinion that consent for a sexual encounter must be clear and unequivocal. She could not imagine a sexual encounter where one party honestly believed the other consented, but the other party did not consent. This opinion was particularly relevant in Midshipman Keago’s case as he intended to defend himself by asserting a mistake of fact as to consent.
The third challenged member was a male Lieutenant whose wife had been the victim of sexual assault.
The Court of Appeals first analyzed the military judge’s decision not to disqualify the challenged members for actual bias. A military judge’s decision on actual bias is afforded great deference because the judge is able to observe the demeanor and credibility of the potential members in person. The Court determined that the military judge in Midshipman Keago’s case did not err in denying the defense challenges of these members for actual bias.
The analysis is different for claims of implied bias, however. The test for implied bias is an objective one only partially based upon the military judge’s determinations of credibility. For this reason, the military judge is afforded less deference by the appellate courts. The Court of Appeals found the decisions on the two Lieutenant Commanders to be a “close case” of implied bias.
The Court then determined that the liberal grant mandate requires a military judge to grant defense challenges in close cases. The military judge’s decision not to disqualify the two Lieutenant Commanders for implied bias was error. The Court of Appeals for the Armed Forces reversed the decision of the Navy-Marine Corps Court of Appeals and set aside the findings and sentence in Midshipman Keago’s case. He can be retried for these offenses with a new panel.
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.