## Facts

- Specialist Robert J. Wiesen, U.S. Army, was tried by a general court-martial for offenses arising from an attempted sexual assault of a child.
- The court-martial panel had 10 members; the most senior was a brigade commander (Colonel Williams).
- Colonel Williams had supervisory or rating authority over six of the other nine members.
- A two-thirds vote (7 of 10) was sufficient to convict; the commander plus his six subordinates constituted that minimum voting bloc.
- During voir dire, the defense challenged Colonel Williams for cause, arguing that his command relationship created a risk that subordinates would follow his lead.
- The military judge questioned the six subordinates; each stated they could decide the case independently and would not be influenced by the commander’s presence.
- Relying on those assurances, the military judge denied the challenge for cause.
- The defense used its single peremptory challenge to remove Colonel Williams and stated on the record it would have used the peremptory challenge on another member if the challenge for cause had been granted.
- Wiesen was convicted and sentenced; the intermediate appellate court affirmed.

## Issues

1. Whether the military judge abused discretion by denying a defense challenge for cause based on implied bias when a brigade commander supervised six panel members who, with him, comprised the two-thirds majority needed to convict.

## Decision

- The Court of Appeals for the Armed Forces reversed the findings and sentence and remanded for further proceedings.
- The court held the military judge abused discretion in denying the challenge for cause based on implied bias.
- The court concluded the panel’s command-and-subordinate composition, coupled with the bloc’s capacity to convict, created an appearance of unfairness sufficient to undermine public confidence.
- The court later denied the Government’s petition for reconsideration and reaffirmed that the challenger bears the burden under R.C.M. 912(f)(3).

## Legal Principles

- Implied bias is evaluated objectively, through the eyes of a reasonable member of the public familiar with the military justice system, focusing on the appearance of fairness.
- Subjective assurances of impartiality during voir dire do not control the implied-bias determination when objective circumstances suggest an appearance of unfairness.
- Military judges must apply the “liberal grant” mandate to defense challenges for cause, particularly in close cases involving implied bias.
- The party making a challenge for cause bears the burden of establishing grounds for the challenge under R.C.M. 912(f)(3).
- When a denied challenge for cause forces the defense to use its peremptory challenge to remove the challenged member, the issue is preserved for appeal if the defense makes a record that it would have used the peremptory on another member.

## Conclusion

A court-martial panel composition that places a senior commander in a supervisory relationship over enough members to form the conviction majority creates implied bias as a matter of public appearance, requiring removal for cause under the liberal-grant standard and warranting reversal when improperly denied.


United States v. Wiesen, 56 M.J. 172 (C.A.A.F. 2001)