Unintended consequences

United States v. Hudson is a new unpublished opinion from AFCCA.

The DC challenged a member for implied bias.

At trial, after Lt Col DB and the other members were selected as court members but before opening statements, the military judge advised the members that to avoid the appearance of inappropriate conduct, she and the lawyers involved in the case were not allowed to speak to them outside the court-martial. The next morning prior to trial, the staff judge advocate advised the military judge that earlier that morning Lt Col DB had sought his advice on whether and how to revise a previous answer he had given the court during voir dire.7 The staff judge advocate testified that he terminated the conversation
and contacted the military judge.

Lt Col DB testified that he did not intend to violate the military judge‟s order but
needed advice on addressing the issue.

Turns out the member said he didn’t know the accused.  Later, he thought maybe he did and wanted to know how to correct that.  Because of the MJ’s admonition about contacts the member sought out an arguably neutral person (again not realizing how MilJus works).

So now we have appellate litigation.  On this AFCCA is right, not an issue.  Rather than focus on whether the member was subject to challenge for cause for “implied bias,” let’s do some education.  The member was confused and was trying to do the right thing. Rather than squelch future similar actions, let’s encourage members to ask questions in court of the MJ. 

I like the idea of the MJ telling the members that we, the counsel, aren’t ignoring them or being unprofessional.  This is good.  Let’s encourage the members to speak up to the MJ in open writing.

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