CAAF has decided United States v. Bagstad. Judge Stuckey wrote for himself, Effron and Ryan, with Baker writing a dissent for himself and Erdmann.
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.”