This opinion is subject to revision before publication

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

_______________

UNITED STATES

Appellee

v.

Joseph R. DOCKERY III, Master Sergeant

United States Air Force, Appellant

No. 16-0296

Crim. App. No. 38624

Argued October 25, 2016—Decided February 14, 2017

Military Judges: William Muldoon and Gregory Friedland

For Appellant: Major Lauren A. Shure (argued); Colonel 

Jeffrey G. Palomino.

For Appellee: Major Mary Ellen Payne (argued); Colonel 

Katherine E. Oler and Gerald R. Bruce, Esq. (on brief).

Chief Judge ERDMANN delivered the opinion of the 

court, in which Judges STUCKY and RYAN joined. 

Judge SPARKS filed a separate concurring opinion in 

which Judge OHLSON joined.

_______________

Chief Judge ERDMANN delivered the opinion of the

court.

Contrary to his pleas, a general court-martial panel 

composed of officer and enlisted members convicted Master 

Sergeant Joseph R. Dockery III of sexual assault and 

adultery, in violation of Articles 120 and 134, Uniform Code 

of Military Justice (UCMJ), 10 U.S.C. §§ 920, 934 (2012).

The panel sentenced Dockery to one year of confinement and 

a reduction to E-4. The convening authority approved the 

sentence as adjudged and the United States Air Force Court

of Criminal Appeals (AFCCA) affirmed the findings and 

sentence.

Rule for Courts-Martial (R.C.M.) 912(f)(1)(N) provides 

that a court-martial panel member shall be excused for 

cause whenever it appears that the member “[s]hould not sit 

as member in the interest of having the court-martial free 

from substantial doubt as to legality, fairness, and 

impartiality.” We granted review in this case to determine 

whether the military judge erred when he removed a
United States v. Dockery, No. 16-0296/AF

Opinion of the Court

2

challenged member on the basis of implied bias and, if the 

removal was in error, whether a prejudice analysis was 

appropriate.1 We hold that the military judge erred in his 

determination that implied bias existed in regard to the 

challenged member. We further hold that a prejudice 

analysis is required in this situation and that Dockery was 

not prejudiced by the error. Therefore, we reverse the 

decision of the AFCCA to the extent that it affirmed the 

military judge’s determination of implied bias, but uphold 

the lower court’s holding that Dockery suffered no material 

prejudice due to the error. 

Background

The underlying facts which form the basis of the charges 

in this case are not at issue in this appeal. The case before 

us arises out of the military judge’s sua sponte removal of a 

panel member on the basis of implied bias.

Prior to voir dire, the military judge was informed that 

one of the panel members, Senior Master Sergeant (SMSgt) 

DC, was listed as a witness on the defense’s witness list. 

When questioned by the military judge as to his knowledge 

of the case, SMSgt DC responded that he had an intimate 

knowledge of the case and the facts surrounding it. When 

asked if he believed it would be appropriate for him to sit on 

the panel, SMSgt DC answered, “No, sir, I do not.” SMSgt 

DC confirmed that he had not discussed any details of the

case with any other members. 

 1 We granted review of the following issues:

I. Whether the military judge erred by granting, 

over the defense objection, the government’s 

challenge for cause against MSgt LW.

II. Whether the Air Force Court of Criminal 

Appeals erred by finding that the military judge did 

not err, and by concluding that even if the military 

judge did err there was no prejudice, contrary to 

this court’s precedent in United States v. Peters, 74 

M.J. 31 (C.A.A.F. 2015), United States v. Woods, 74 

M.J. 238 (C.A.A.F. 2015), United States v. Nash, 71 

M.J. 83 (C.A.A.F. 2012), United States v. Clay, 64 

M.J. 274 (C.A.A.F. 2007), and United States v. 

Dale, 42 M.J. 384 (C.A.A.F. 1995).
United States v. Dockery, No. 16-0296/AF

Opinion of the Court

3

Both the defense and trial counsel agreed that SMSgt 

DC, who was African American, should be excused for actual 

bias and he was subsequently released by the military judge. 

When reading the composition of the court in the presence of 

the members, trial counsel noted that SMSgt DC had been 

excused by the military judge.

During individual voir dire, the trial counsel asked 

Master Sergeant (MSgt) LW if she had had any sexual 

assault training. She stated that, as a junior enlisted 

airman, she had volunteered at a rape crisis center, which 

entailed her sitting with women in medical facilities as they 

awaited and underwent medical examination for sexual 

assault. The trial counsel then asked about her positive 

response during group voir dire to the defense counsel’s 

question concerning intoxication and whether slurred speech 

meant an individual could not consent to sex. He was able to 

get MSgt LW to agree that she would not automatically base 

her decision on slurred speech, but would consider all the 

facts about the individual’s condition and the military 

judge’s instructions on consent.

Later, during the individual voir dire of MSgt LW, the

following colloquy occurred: 

[DC:] Okay. I’m going to go into some questions 

that I didn’t ask when all you guys were on the 

panel, and we think the evidence in this case is 

going to show that Master Sergeant Dockery had 

sexual intercourse with Ms. [AR]. Master Sergeant

Dockery, as you can see, is black, and you’ll see 

that Ms. [AR] is white. Do you have any strong 

opinions on interracial relationships or interracial 

sex, anything like that?

[MSgt LW:] I certainly don’t. I’m Hispanic myself, 

black and Hispanic. So to me that has absolutely 

nothing to do with anything.

. . . . 

[DC:] Okay. The last question I have for you is, 

knowing we’re dealing with a sexual assault, which 

is obviously a very important topic, and Master 

Sergeant Dockery’s career and future are—you 

know—hanging on this, knowing those facts, if you 

were in his shoes right now, would you want 

someone like you on this jury?

[MSgt LW:] I would think yes, be fair, not from 

nothing, but for some reason an African American 
United States v. Dockery, No. 16-0296/AF

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4

person already got dismissed, so really I would 

think—not that it wouldn’t be—oh god—I would 

say yes. You would want—you would want 

somebody like me to be fair for both parties, to 

judge. I will think that I will be fair, listening to all 

the facts, either way.

. . . .

[DC:] [A]ny other things in terms of you thinking 

you’d be a good fit for the panel, you would want 

somebody like you if you were in that position? 

Anything else beyond what you’ve already said?

[MSgt LW:] If I was in a position of—

[DC:] Yeah, if—would you want somebody like you 

on a jury if you were in that position? You 

discussed your ability to be fair. I was just curious 

if there was anything else.

[MSgt LW:] No, sir. I think I’ll be fair.

[DC:] Okay, all right, thank you so much.

[MSgt LW:] No problem.

[MJ:] Trial Counsel, any follow up questions?

[TC:] Briefly, Your Honor. [MSgt LW], I just 

wanted to clarify one thing that you just said. You 

made a comment, I believe—maybe I heard it 

incorrectly—you made a comment when he asked 

you about whether or not you could be fair, you 

made a comment about one person had already 

gotten dismissed, or one African American already 

got dismissed. Is that what you stated?

[MSgt LW:] Yes, sir.

[TC:] What were you—what was your point, or 

what—are you concerned that he was dismissed 

and that he’s African American?

[MSgt LW:] No, sir, no. Just if—well, I don't 

know—I’m assuming there’s supposed to be 12 

individuals, and I was just wondering if—you 

know—if he was going to be replaced.

. . . .

[TC:] Sir, would you mind instructing her on that?

[MJ:] Sure, I can do that. So, for military courts, 

there’s no requirement to have 12 folks. The 

minimum requirement is five. Okay? So it’s 

different than what you see on TV, and what you 

see in the movies on Netflix or Hulu. So for any 
United States v. Dockery, No. 16-0296/AF

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5

number of reasons, me, as the military judge can 

excuse court members for a number of reasons. And 

there was an issue that was brought up to me, I 

made a judgment call as the military judge, sort of 

like an official on a football—called an official time 

out and I said, “You know what? This person is not 

going to sit on the panel as a juror.”

[MSgt LW:] Okay, sir.

[MJ:] You are not to speculate as to why I excused 

that person from the panel. Don’t try to infer any 

particular reason why that person was excused 

from the panel. It’s just because my job is to make 

sure this trial is conducted in a fair, orderly, and 

impartial manner, and so that’s what I did. 

So, with that information coming from me as the 

military judge, does that affect any comments or 

thoughts you have about your ability to sit on this 

panel as a court member?

[MSgt LW:] No, sir.

[MJ:] Okay. You think you can be fair to both sides?

[MSgt LW:] Yes, definitely, sir. 

After the individual voir dire of all of the members, the 

government moved to strike MSgt LW for “actual bias

against the prosecution, or the government.” Defense 

counsel objected. The military judge asked each side for 

their positions in regard to this challenge:

[TC:] Yes, sir. It was the comment she made about 

that seemed like she didn’t really intend for it to 

slip out, but she seemed to believe that—she 

expressed basically the fact that she kind of felt 

like she needed to protect the accused, or kind of 

battle for him because we’d already excused one 

black member. It seemed to indicate that she had a 

bias in his favor along racial lines. Not—no 

malicious intent there, but it seemed to express a 

bias and a belief that there might be some sort of 

conspiracy on the part of the government to get rid 

of minority members on the panel.

So the government can’t be comfortable that she is 

not biased in favor of the accused and against us 

because of that statement, despite the fact that 

obviously I know you clarified and gave her a lot 

more background about that challenge—or that 

excusal I guess I should say. Still, the fact that 

that’s what she expressed, and then she seemed to 
United States v. Dockery, No. 16-0296/AF

Opinion of the Court

6

want to backtrack from that when she realized 

what she said.

That’s our basis for challenging her for actual bias.

[MJ:] All right. Defense Counsel, what’s your 

position?

[DC:] Your Honor, the—once you’re able to flesh it 

out, it seemed her confusion in the statement was 

rising from they were dealing with 11 and she had 

it in her mind that, like a civilian jury, there had to 

be 12. Once you clarified that—you know—12 

wasn’t the fixed number and that wasn’t a problem, 

she seemed immediately to get it. You asked if she 

had any issue in terms of fairness, all of that, she 

said she definitely was going to be fair. Did not 

indicate anything firm in terms of racial bias or 

anything like that. I think this was simply her just 

being confused in terms of military justice 

procedure and what it meant when [SMSgt DC] 

was excused from the panel. There was [sic] no 

explicit statements about protecting him on racial 

lines or other lines. It completely was a matter of 

straight confusion, which the court, when they voir 

dire’d [sic] her, sufficiently resolved.

[MJ:] Okay. Thanks. All right, I’ve considered her 

responses. While I don’t find an actual bias, on the 

part—I think that was cleared up by my 

instructions to her, I do find that there is implied 

bias on the part of [MSgt LW] from her utterance 

without any precipitating factors there, and so

given that I find implied bias, the challenge against 

[MSgt LW] is granted. So she will be excused. 

At his court-martial, Dockery was found guilty of one 

specification of sexual assault and one specification 

adultery. On appeal to the AFCCA, Dockery alleged six 

assignments of error, which included the military judge’s 

grant of the challenge for cause of MSgt LW. United States 

v. Dockery, No. ACM 38624, 2015 CCA LEXIS 540, at *1, *5, 

2015 WL 9594508, at *1-2 (A.F. Ct. Crim. App. Dec. 2, 2015)

(unpublished).

The AFCCA found that the military judge did not err in 

excusing MSgt LW for implied bias because she raised the 

issue of race in her “unsolicited response” to a voir dire

question. 2015 CCA LEXIS 540, at *12, 2015 WL 9594508, 

at *5. The lower court concluded that MSgt LW’s response 

demonstrated a racial bias that would cause a reasonable 
United States v. Dockery, No. 16-0296/AF

Opinion of the Court

7

member of the public to question the fairness of the trial 

were MSgt LW to sit as a member. 2015 CCA LEXIS 540, at

*13, 2015 WL 9594508, at *5. The AFCCA went on to find 

that, even assuming that the excusal of MSgt LW was in 

error, it was harmless beyond a reasonable doubt. 2015 CCA 

LEXIS 540, at *14, 2015 WL 9594508, at *5. As Dockery had 

made no complaint as to the qualifications of the members 

that did sit on his panel and because there was no reason to 

believe a different “mix” of members would have yielded a 

more favorable result, the lower court held that Dockery did 

not suffer any material prejudice. 2015 CCA LEXIS 540, at

*15-16, 2015 WL 9594508, at *6 (citing United States v. 

Newson, 29 M.J. 17, 21 (C.M.A. 1989)).

Issue I

The first issue is whether the military judge erred in 

granting the challenge of MSgt LW on implied bias grounds. 

Dockery argues that the military judge erred in granting 

the government’s challenge because it was based upon a 

misinterpretation of MSgt LW’s statements. He argues that 

this is evidenced by MSgt LW’s statements that she would 

be fair to both parties and that her other statements were 

far from demonstrating any racial bias. Dockery asserts that 

MSgt LW’s answer regarding her race was an appropriate 

response to the question “would you want somebody like you

on this jury?” (Emphasis added.) Dockery argues MSgt LW

reasonably could have interpreted this question as including 

a reference to her race. Finally, he argues that, since the 

only other African American member of the panel had been 

excused, it was reasonable for MSgt LW to believe a racially 

diverse panel was desirable.

The government responds by asserting that the military 

judge did not plainly err in his implied bias analysis. 

According to the government, MSgt LW’s “unprompted 

expression of concern” about the excusal of SMSgt DC led to 

the reasonable inference that she would be biased in favor of 

Dockery. Further, the government argues that if MSgt LW

had remained on the panel, there would have been too great 

of a risk that a member of the public would have questioned

the fairness of the court-martial.2

 2 Both parties discussed the application of Batson v. Kentucky, to 

this case. 476 U.S. 79 (1986) (holding that a criminal defendant’s 

rights under the Equal Protection Clause are violated if the 
United States v. Dockery, No. 16-0296/AF

Opinion of the Court

8

Discussion

This court reviews implied bias challenges pursuant to a 

standard that is “less deferential than abuse of discretion, 

but more deferential than de novo review.” United States v. 

Peters, 74 M.J. 31, 33 (C.A.A.F. 2015) (citations omitted)

(internal quotation marks omitted). An abuse of discretion 

has occurred “if the military judge’s findings of fact are 

clearly erroneous or if the decision is influenced by an 

erroneous view of the law.” United States v. Quintanilla, 63 

M.J. 29, 35 (C.A.A.F. 2006) (citation omitted). 

A “military judge’s ruling on a challenge for cause is 

given great deference.” United States v. Rolle, 53 M.J. 187, 

191 (C.A.A.F. 2000) (citation omitted) (internal quotation 

marks omitted). Although it is not required for a military 

judge to place his or her implied bias analysis on the record, 

doing so is highly favored and warrants increased deference 

from appellate courts. United States v. Clay, 64 M.J. 274, 

277 (C.A.A.F. 2007) (recognizing the “vantage point of a 

military judge observing members in person and asking the 

critical questions that might fill any implied bias gaps left 

by counsel.”). We have noted that although “[w]e do not 

expect record dissertations” from the military judge’s 

decision on implied bias, we do require “a clear signal that 

the military judge applied the right law.” Id. (citation 

omitted) (internal quotation marks omitted). However, a 

mere “[i]ncantation of the legal test [for implied bias] 

without analysis is rarely sufficient in a close case.” Peters, 

74 M.J. at 34. “In cases where less deference is accorded, the 

analysis logically moves more towards a de novo standard of 

review.” United States v. Rogers, 75 M.J. 270, 273 (C.A.A.F. 

2016). 

R.C.M. 912(f)(1)(N) applies to both implied and actual 

bias.3 United States v. Daulton, 45 M.J. 212, 216-17 

 

government uses a preemptory challenge to strike jurors on 

account of their race). However, the federal circuits have not 

applied Batson to challenges for cause, which was the basis for the 

challenge in this case. See, e.g., United States v. Elliott, 89 F.3d

1360, 1364-65 (8th Cir. 1996) (“We know of no case that has 

extrapolated the Batson framework to for-cause strikes.”).

3 While the government initially challenged MSgt LW for actual 

bias, the military judge denied the challenge, finding that his 

instructions to MSgt LW remedied any actual bias that may have 

been present. As neither party disputes that portion of the 
United States v. Dockery, No. 16-0296/AF

Opinion of the Court

9

(C.A.A.F. 1996). Implied bias challenges stem from the 

“historic concerns about the real and perceived potential for 

command influence” in courts-martial. Clay, 64 M.J. at 276-

77. “Implied bias exists when most people in the same 

position as the court member would be prejudiced.” United 

States v. Elfayoumi, 66 M.J. 354, 356 (C.A.A.F. 2008). It is 

evaluated objectively under the totality of the circumstances 

and “ ‘through the eyes of the public,’ reviewing ‘the 

perception or appearance of fairness of the military justice 

system.’ ” Id. (quoting United States v. Townsend, 65 M.J. 

460, 463 (C.A.A.F. 2008)). “The core of that objective test is 

the consideration of the public’s perception of fairness in 

having a particular member as part of the court-martial 

panel.” Peters, 74 M.J. at 34.

After denying the government’s actual bias challenge,

the military judge found that MSgt LW’s responses 

constituted implied bias because her “utterance” was made 

“without any precipitating factors.” The military judge 

granted the challenge against MSgt LW with no further 

discussion or explanation. From this record it is impossible 

for us to determine whether the military judge considered 

and applied the well-established standards for analyzing an 

implied bias challenge. We cannot know if the military judge 

viewed MSgt LW’s statements under the totality of the 

circumstances or whether he even considered the public’s

perception as to the fairness of the trial were MSgt LW to 

remain on the panel. As the military judge did not put any

analysis on the record, this court need not afford his ruling

much deference. See Clay, 64 M.J. at 277 (citing United 

States v. Downing, 56 M.J. 419, 422 (C.A.A.F. 2002)).

The context of MSgt LW’s statements shed light on the 

motivations for her responses. She was asked by defense 

counsel if she had any “strong opinions on interracial 

relationships or interracial sex,” as Dockery was African

American and the victim was Caucasian. MSgt LW indicated 

she did not hold any strong opinions because she was 

African American and Hispanic. Almost immediately 

following this question, defense counsel asked, “[I]f you were 

in [Dockery’s] shoes right now, would you want somebody

like you on this jury?” (Emphasis added.) MSgt LW 

 

military judge’s ruling, we need only address the military judge’s 

sua sponte implied bias ruling. 
United States v. Dockery, No. 16-0296/AF

Opinion of the Court

10

answered that she would want herself on the panel if she 

were in Dockery’s position because she would be fair and “for 

some reason an African American person already got 

dismissed, so . . . you would want somebody like me to be fair 

for both parties.” (Emphasis added.)

The highlighted language is the portion of MSgt LW’s 

response that the military judge relied on in finding 

evidence of an appearance of racial bias.4 As MSgt LW had 

just been asked about interracial relationships, the phrase 

“somebody like you” could reasonably be interpreted as 

including a reference to her race. Contrary to the military 

judge’s findings, it was not MSgt LW who initially injected 

race into the voir dire process, but rather it was defense 

counsel’s questions.

When trial counsel later asked MSgt LW if she was 

concerned that an African American panel member had been 

excused, she answered that she was not concerned that 

SMSgt DC was African American, but rather that she 

thought there were supposed to be twelve members and she 

was wondering if he would be replaced. The military judge 

resolved MSgt LW’s misunderstanding as to the number of 

panel members required by providing an appropriate 

instruction. MSgt LW reiterated she would listen to all of 

the facts and would judge them fairly. She clearly indicated 

more than once that she would be fair to both sides.

While the government argued at trial that MSgt LW’s 

response indicated that she “needed to protect” Dockery, or 

“battle for him,” that was not the basis of the military 

judge’s ruling. The only basis in the record for the implied 

bias ruling is that MSgt LW had brought up the issue of race 

“without any precipitating factors.” However, as previously

noted, the record reflects that it was not MSgt LW who 

initially raised the issue of race in this proceeding but rather 

the defense counsel. 

 

4 The AFCCA noted that this “initial response may have been 

motivated solely by [MSgt LW’s] interest in racial diversity” but 

added that “her ambiguous reply to trial counsel’s attempt to 

clarify her position further buttresses a theory supporting the 

finding of implied bias.” 2015 CCA LEXIS 540, at *13-14, 2015 WL 

9594508, at *5.
United States v. Dockery, No. 16-0296/AF

Opinion of the Court

11

Reviewing the totality of the circumstances, we do not 

believe that MSgt LW’s inclusion on the court-martial panel

would have caused the public to perceive unfairness within 

the military justice system. In this circumstance, a panel 

member simply making a reference to race does not create 

either the reality or appearance of racial bias. We 

consequently hold that the military judge erred when he 

excused MSgt LW on the basis of implied bias.

Issue II

We now turn to the second issue in this case, which is 

whether the AFCCA erred by: (1) upholding the military 

judge’s challenge for cause ruling; and (2) holding that even 

if the military judge erred, Dockery suffered no material 

prejudice. 2015 CCA LEXIS 540, at *15-16, 2015 WL 

9594508, at *5-6. Because we conclude that the military 

judge erred when he granted the challenge against MSgt LW

on implied bias grounds, we similarly hold that the AFCCA 

erred when it upheld that determination. Our prejudice 

analysis, however, is complicated by the procedural posture 

of this case.5

Dockery asserts that the AFCCA incorrectly determined 

that any implied bias error was harmless beyond a 

reasonable doubt. He argues that this court has never 

required an appellant to show prejudice when a military 

judge improperly grants a challenge for cause under the 

implied bias standard. He further argues that requiring him 

to demonstrate actual prejudice is impossible, as there is no 

actual manifestation of bias when determining implied bias. 

He therefore contends that he cannot show any actual 

prejudicial impact, but only “an appearance of impropriety.”

The government counters that the AFCCA did not err by 

testing for prejudice. The government explains that this 

court’s case law as to implied bias, which does not require a 

showing of actual prejudice, is distinguishable from this 

case. Specifically, the government asserts that those cases 

involve the failure to excuse a panel member for cause, 

rather than the erroneous excusal of a panel member. See,

e.g., Peters, 74 M.J. at 32; United States v. Nash, 71 M.J. 83 

(C.A.A.F. 2012); Clay, 64 M.J. at 275; United States v. Dale, 

42 M.J. 384 (C.A.A.F. 1995).

 5 We note that both parties agreed that structural error was not 

present in this case.
United States v. Dockery, No. 16-0296/AF

Opinion of the Court

12

Discussion

Whether a lower court utilized the appropriate standard 

to test for prejudice is a question of law reviewed de novo. 

United States v. Evans, 75 M.J. 302, 304 (C.A.A.F. 2016).

In a typical case involving actual bias, an appellant

appeals the denial of a challenge for cause and argues the 

challenged member’s participation on the panel resulted in

material prejudice. See Peters, 74 M.J. at 34; Woods, 74 M.J. 

at 243; United States v. Terry, 64 M.J. 295, 302-04 (C.A.A.F. 

2007). When implied bias is the basis for an appeal of a 

denied challenge, the appellant similarly argues that the 

challenged member should have been removed. See Woods, 

74 M.J. at 243-44. However, instead of arguing prejudice, 

the appellant asserts that, because the member remained on 

the panel, a reasonable member of the public would question 

the fairness of the court-martial. Id.

In this case, the military judge sua sponte granted the 

government’s actual bias challenge of MSgt LW on the basis 

of implied bias, which arose from her alleged racial bias.6

The unstated implication of the military judge’s ruling was 

that the inclusion of MSgt LW on the panel would cause the 

public to perceive that the military justice system was 

unfair. Because Dockery has successfully argued on appeal 

that the implied bias ruling was in error, the issue before us 

now concerns whether he must establish that he suffered 

prejudice as a result of that error. 

Dockery contends that the military judge’s implied bias 

ruling was erroneous and has asked us to reverse that 

ruling. However, asking this court to reverse a ruling of 

implied bias does not place Dockery in the same position as 

an appellant who has brought a successful implied bias 

challenge, and therefore does not eliminate the need for 

Dockery to establish that he was prejudiced from the error. 

Dockery has not based his request for a reversal on the 

presence of implied bias. To the contrary, Dockery’s appeal 

is based on just the opposite – that implied bias did not 

exist. 

 6 “[W]here actual bias is found, a finding of implied bias would not 

be unusual, but where there is no finding of actual bias, implied 

bias must be independently established.” Clay, 64 M.J. at 277.
United States v. Dockery, No. 16-0296/AF

Opinion of the Court

13

Dockery argues that failing to include MSgt LW was 

error – but he does not argue that any member on that panel 

was impliedly biased. This places Dockery in a much 

different position than an appellant in a typical implied bias 

case where the issue is the inclusion of an impliedly biased 

member, which could raise doubt about the fairness of the 

trial in the public’s mind. As the government has noted, 

there is a difference between the failure to remove a biased 

member who sat on a panel that tried an accused, and the 

erroneous removal of an unbiased member from a panel, 

where there is no challenge to the ultimate makeup of the 

panel. 

The ultimate interest that Dockery seeks to protect is 

that he received a fair and impartial panel. Both this court 

and Article III courts have required an appellant to make a 

showing of prejudice under similar situations. For example,

in the capital case of Quintanilla, we held that the military 

judge erroneously granted a government challenge for cause 

against a panel member. 63 M.J. at 36. In our analysis, we 

looked to whether the appellant had been prejudiced and 

ultimately denied relief, noting that there had “been no 

allegation that any of the members who sat on the panel 

held a bias against Appellant or otherwise should have been 

disqualified.” 63 M.J. at 37; see also Rose v. Clark, 478 U.S. 

570, 579 (1986) (“[I]f the defendant had counsel and was 

tried by an impartial adjudicator, there is a strong 

presumption that any other [constitutional] errors that may 

have occurred are subject to harmless-error analysis.”); 

Newson, 29 M.J. at 21 (Where qualified members sat for a 

court-martial, “[t]here is no reason to suspect that a 

different mix of members would have produced results more 

favorable to appellant.”).

Several federal circuits have similarly held that where a 

government challenge for cause is improperly granted, and 

the error is nonconstitutional, the appellant is entitled to 

relief only if he or she can demonstrate prejudice. See United 

States v. Mills, 987 F.2d 1311, 1314 (8th Cir. 1993) (holding

that reversal of cases where jurors are improperly removed 

for cause is necessary only when the appellant shows actual 

prejudice); United States v. Griley, 814 F.2d 967, 974 (4th 

Cir. 1987) (finding harmless error where the appellant could 

not demonstrate that the exclusion of a prospective juror 

adversely affected him). 
United States v. Dockery, No. 16-0296/AF

Opinion of the Court

14

Dockery has neither alleged that any of the panel

members who ultimately tried him were biased nor has he 

suggested that their presence on the panel created

substantial doubt as to the court-martial’s “legality, fairness 

and impartiality.” See R.C.M. 912(f)(1)(N). We therefore

uphold the lower court’s determination that the military 

judge’s error was subject to a harmless error analysis. As 

Dockery has failed to establish any material prejudice, he is 

not entitled to relief.

Conclusion

While the United States Air Force Court of Criminal 

Appeals’ determination that the military judge did not err in 

his implied bias ruling was erroneous, we agree with the 

lower court that Dockery suffered no prejudice. Therefore 

the judgment of United States Air Force Court of Criminal 

Appeals is affirmed. 
United States v. Dockery, No. 16-0296/AF

Judge SPARKS, with whom Judge OHLSON joins, concurring.

I concur with the Court’s conclusion that the military 

judge erred in this case but that the accused was not prejudiced as a result of that error. I write separately to express 

certain concerns that have little to do with the Chief Judge’s 

well-reasoned opinion, and more to do with the issue of certain appearances that arise in the implied bias context. 

Here, the military judge’s precise basis for his implied 

bias determination is unclear because of his failure to put 

more on the record. However, given the context in which the 

issue arose and the trial counsel’s argument in support of 

the challenge for cause, it seems the military judge was concerned that it might appear to some that the issue of racial 

bias in favor of the accused and against the Government had 

found its way into the proceedings. The military judge was 

rightfully sensitive to this issue. However, if this was the 

military judge’s reasoning, it may have been an overreaction. There is a distinction to be drawn between the issue of 

race and the issue of racial bias. Here, the issue of race was 

present from at least the point during voir dire when the 

members, after observing that the accused was black, deduced that the victim was white. However, MSgt LW’s responses to the questions posed to her from counsel and the 

military judge do not even remotely suggest that she harbored a racial preference for or bias towards the accused, 

notwithstanding trial counsel’s ardent claims to the contrary. 

Although the Government is entitled to a fair opportunity to present its case to unbiased members, the issue of the 

appearance of fairness in a criminal proceeding is generally 

understood as a reference to the appearance of fairness to 

the accused. After all, it is the accused’s constitutional right 

to a fair trial that is most often at issue. Press-Enterprise Co. 

v. Superior Court, 464 U.S. 501, 508 (1984). Here, the military judge’s concern for the appearance of fairness to the 

prosecution risked raising a more significant appearance issue relevant to the accused. I agree this case is not controlled by Batson v. Kentucky, 476 U.S. 79 (1986). That said, 

when any member of a suspect class (such as a racial or ethnic group) is improperly removed from the court-martial 

panel, the constitutional concerns underpinning Batson are 

implicated. The question then is whether the military 

judge’s ruling in this case raised the specter that the accused 
United States v. Dockery, No. 16-0296/AF

Judge SPARKS, concurring

2

was tried before a court-martial in which a member of his 

race was purposefully excluded based on the false assumption that the member would be unable to impartially consider the case against an accused of the same race. Id. at 85. 

Because of the trial counsel’s over-the-top argument in support of his challenge for cause and our conclusion that the 

military judge erroneously removed the member, it might 

well seem to some that the appearance of purposeful exclusion is clearly present in this case. I remain of the view that 

from a purely objective standpoint, no reasonable person 

armed with the facts and circumstances of this case and an 

understanding of the military justice system would conclude 

that the military judge purposefully excluded the member 

based on her race. The record does not disclose a racial animus on the part of the military judge, and I am loath to ascribe to him any nefarious motive.

My intent here is to offer a word of caution to military

judges. Here, the military judge could simply have denied 

the challenge for cause without more. If the trial counsel 

truly felt as strongly as his comments on the record suggest, 

he could have exercised his peremptory challenge. This 

would have provided the military judge the opportunity to 

develop the record with the appropriate inquiry required 

under Batson and erased the ambiguity we are left with in 

this case.

Finally, it remains unclear under our case law when, if

ever, an appearance of purposeful exclusion of a member by 

the military judge might warrant relief, as long as the accused has been tried by an impartial panel. I conclude that 

an appearance of purposeful exclusion does not exist in this 

case. However, it does raise important questions about what, 

if any, remedy would be available in a more flagrant situation in which relief might well be warranted.