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Implied Bias at CAAF: Court-Martial Convictions Reversed

An officer panel convicted Josh's client of various sexual offenses, of making a false official statement, and of obstruction of justice. CAAF vacated his convictions and his sentence. Josh wrote the principal brief at CAAF, and also argued the case.

The issue on appeal was the implied bias of the panel. Implied bias is a unique concept for military justice, where the Court is looking to protect the integrity of the system and how fair it appears, without determining any actual bias or prejudice against the accused. Here, three of the panel members served on the Sexual Assault Review Board (SARB) where the client’s case was briefed before his trial. Even though the three members said they had no recollection of his case from that time, CAAF found that actual memory of the case or actual bias towards him was irrelevant. Rather, because CAAF found that the three members gave inaccurate answers about their service on the SARB, they prevented a full and knowing voir dire. Therefore, the convictions could not stand because a member of the public, in these circumstances, would harbor substantial doubt about the fairness of the court-martial process.

Read the CAAF's official opinion here.

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