Specialist Urieta was charged with one specification of making a false official statement and three specifications of sexual assault. At trial he was represented by his assigned military attorney as well as a civilian defense attorney. During selection of the panel members who would hear the case, one potential member, Sergeant First Class Bravo (not his real name), stated that he believed that Soldiers who hire civilian defense attorneys must be guilty. The attorneys followed up on individual voir dire and SFC Bravo said that in his experience Soldiers only hire civilian attorneys when they have already been tried, did not like the result, and hired a civilian for the retrial. He went on to say that he found a Soldier having a civilian counsel unusual and that he thought it meant that the Soldier did not trust his defense or the military system. Ultimately, SFC Bravo said that he would not consider the fact that SPC Urieta was represented by a civilian attorney in his deliberations. The defense challenged SFC Bravo, alleging both actual and implied bias. The Military Judge denied the challenge on both grounds. SPC Urieta was convicted of making a false official statement and two specifications of sexual assault. He was sentenced to 8 months confinement, reduction to E-1, and a dishonorable discharge.
On appeal, SPC Urieta argued that the Military Judge had erred in denying his challenge to SFC Bravo. The Army Court of Criminal Appeals disagreed and summarily affirmed the findings and sentence in his case. SPC Urieta petitioned the Court of Appeals for the Armed Forces [CAAF] and the Court granted review of this issue. In its decision in United States v. Urieta, released last month, the CAAF found the Military Judge’s analysis and decision lacking in several key respects.
First, the Military Judge had failed to explain his reasoning in denying the challenge for implied bias. CAAF released United States v. Keago last year, and in the opinion warned military judges that they would get very little deference on their implied bias decisions if they did not explain their reasoning on the record. Our post on that case, with an in depth explanation of actual and implied bias is here. Without an analysis on the record, the CAAF gave the Military Judge’s decision almost no deference.
Second, the Military Judge had a mistaken view of the facts. He found that SFC Bravo was voicing an “outside perspective” as opposed to a personal view. Although the NCO did discuss an “outside perspective” he also repeatedly inserted his own personal opinion that appeared to coincide with the “outside” view.
Third, the Military Judge did not recognize the importance of what the SFC Bravo was saying. He had essentially said that he believed that Soldiers who hired civilian attorneys had already been to trial, been found guilty, and then had gotten a new trial with civilian counsel. If SFC Bravo believed that SPC Urieta had already been found guilty of the offenses he faced, this should have been a crucial part of the Military Judge’s analysis.
Fourth, the Military Judge did not follow up SFC Bravo’s answers with more questions in order to clarify his statements. He left the statements that a Soldier hiring a civilian attorney did not trust his defense unexplored and did not find out if SFC Bravo actually believed that SPC Urieta must have been found guilty at an earlier trial.
Finally, the Military Judge never instructed SFC Bravo on the constitutional right of a servicemember to have counsel of their choice to represent them. He did not explain the issues at play, so that SFC Bravo might better understand the role of civilian defense counsel and recant his previous beliefs. Without this rehabilitation, SFC Bravo’s presence on the panel remained problematic.
The bottom line for the Court is that SFC Bravo’s uncorrected misunderstanding of the facts and legal issues in the case might lead an impartial observer to have substantial doubt as to the fairness of SPC Urieta’s court-martial. In close cases of implied bias, military judges must exercise the liberal grant mandate and excuse the challenged member. The Military Judge in this case erred in denying the challenge. The CAAF set aside the finding and sentence and returned the case to the Judge Advocate General of the Army for a potential rehearing.
If you or your loved one want to appeal a court-martial, you need someone with experience who knows what arguments to make on your behalf, and when to make them. I have argued this issue, and numerous others in front of appellate courts and CAAF. I have the experience you need. Please call Bill Cassara at (706) 860-5769 for a free consultation.