Leveraging Implied Bias Standard in Court-Martial Panel Selection

The panel selection process is an opportunity for the defense to win its case on appeal.

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On March 24, 2025, the U.S. Court of Appeals for the Armed Forces (CAAF) issued its decision in United States v. Urieta, reversing the findings and sentence of a court-martial due to the military judge’s failure to adequately address implied bias during panel selection. This decision underscores the importance of protecting an accused service member’s right to a fair and impartial panel and provides critical guidance for military criminal defense attorneys. For those practicing in the unique arena of military justice, Urieta offers a roadmap for effectively challenging panel members, mainly when bias—actual or implied—is at issue.

Case Background

Specialist Rodrigo Urieta faced a general court-martial at which he was convicted of multiple offenses, including sexual assault. During voir dire, one panel member, Sergeant First Class (SFC) Bravo (a pseudonym), made statements that raised concerns about implied bias. Specifically, SFC Bravo expressed skepticism regarding soldiers who hire civilian defense counsel, stating, “To me, hiring an outside civilian lawyer means that you don’t trust your defense much.” He also characterized hiring civilian counsel as “unusual” and suggested that it reflected a lack of trust in the military justice system.

The defense challenged SFC Bravo for both actual and implied bias, arguing that his statements created the appearance of unfairness. The military judge denied the challenge and the panel—including SFC Bravo—convicted Urieta. On appeal, the CAAF found that the military judge had erred in addressing implied bias and failing to apply the “liberal grant mandate” adequately. As a result, the court-martial findings and sentence were overturned.

Key Takeaways for Defense Attorneys

The Urieta decision highlights several critical issues that military defense counsel must consider during voir dire and when challenging panel members. Below are the key lessons from this case:

1. Implied Bias Requires Careful Attention

- Implied bias exists where the public might reasonably question the fairness of the proceedings, even if the panel member claims impartiality. In Urieta, the CAAF emphasized the importance of analyzing implied bias separately from actual bias.

- Defense counsel should argue implied bias in cases where a panel member’s statements or circumstances could lead an objective observer to question the fairness of the trial.

2. The Liberal Grant Mandate is a Powerful Tool

- The liberal grant mandate requires military judges to excuse panel members in close cases of bias to preserve the fairness and integrity of the court-martial process. The CAAF found that the military judge in Urieta failed to apply this mandate meaningfully.

- Savvy defense attorneys should remind the military judge of the liberal grant mandate and argue that it applies whenever bias is a close question.

3. The Problem with Leading Rehabilitation Questions

- In Urieta, trial counsel attempted to rehabilitate SFC Bravo by asking leading questions, such as whether he would “hold it against [the accused]” that he had hired civilian defense counsel. SFC Bravo predictably responded that he would not. However, the CAAF emphasized that such leading questions were insufficient to dispel the risk of implied bias, particularly because SFC Bravo never recanted his original problematic views.

- Defense attorneys should remind military judges that leading rehabilitation questions do not adequately address the risk of bias. Instead, the court should require the panel member to fully explain or clarify their views in their own words without being prompted by the government’s tailored questions.

4. Thorough Voir Dire is Essential

- In Urieta, the military judge failed to ask follow-up questions to clarify SFC Bravo’s troubling statements, such as his view that hiring civilian defense counsel was “unusual.” Defense counsel should proactively ask open-ended and follow-up questions to uncover biases and ensure those biases are fully documented on the record.

5. Build a Strong Record for Appeal

- The Urieta decision shows that a strong appellate record can be decisive. Defense counsel should highlight problematic statements during voir dire, articulate their bias concerns clearly, and ensure the military judge provides detailed reasoning for any rulings on challenges for cause.

6. Challenge the Government’s Opposition

- Time and time again, the government will object to defense challenges for cause, even in close cases of implied bias. The Urieta case illustrates how this short-term strategy can backfire. By opposing challenges in close cases, the government risks having convictions overturned on appeal, as happened here. Defense attorneys should emphasize that excusing a panel member in a close case serves the long-term interests of justice and protects the integrity of the military justice system.

Why the Government’s Strategy Hurts Their Case

In Urieta, the government opposed the defense’s challenge for implied bias, arguing that SFC Bravo’s statements reflected only an “outside perception” rather than a personal belief. This argument ultimately failed because the record clearly showed that SFC Bravo expressed personal views that could create the perception of unfairness. The government’s opposition to the challenge likely saved SFC Bravo’s seat on the panel in the short term but overturned the case on appeal. This highlights the critical difference in perspective between the government and defense counsel. While the government often focuses on immediate trial outcomes, defense attorneys must think strategically about the trial and potential appellate cases.

Savvy defense counsel recognizes that the appellate record begins at trial. When the government resists challenges for cause, defense attorneys should clearly articulate the risk of reversal on appeal. Use the liberal grant mandate to argue that excusing panel members in close cases avoids jeopardizing the trial’s long-term validity.

Practical Application of Urieta

Here’s how defense attorneys can use United States v. Urieta to their advantage:

- Educate the Judge: Emphasize the liberal grant mandate and explain why it applies in close cases of bias. If the judge denies your challenge, ask for detailed reasoning on the record.

- Probe Deeply During Voir Dire: Ask open-ended questions, encouraging panel members to elaborate on their beliefs. For example, if a panel member expresses skepticism about civilian defense counsel, ask follow-up questions to clarify whether they might hold that view against your client.

- Challenge Leading Rehabilitation Questions: If trial counsel attempts to rehabilitate a problematic panel member with leading questions, remind the military judge that such questions are insufficient. Highlight the need for the panel member to clarify or recant their problematic views in their own words.

- Preserve the Record: If the judge denies your challenge, ensure the record includes the panel member’s problematic statements and your arguments. This will be critical if the case goes to appeal.

- Highlight the Government’s Short-Term Thinking: Remind the court that denying a challenge in a close case increases the risk of reversal on appeal, ultimately harming the military justice system.

Conclusion

The United States v. Urieta decision reinforces the importance of protecting an accused service member’s right to a fair and impartial panel. By understanding and applying the principles outlined in this case, military defense attorneys can strengthen their voir dire challenges and ensure their clients receive the fair trial they deserve. Whether you’re preparing for trial or building an appellate record, Urieta is a case that belongs in every military defense attorney’s toolkit.