IN THE CASE OF 

UNITED STATES, Appellee 

v. 

Allan P. JAMES, Airman 

U.S. Air Force, Appellant 

No. 04-0284 

Crim. App. No. 34863 

United States Court of Appeals for the Armed Forces 

Argued November 8, 2004 

Decided May 26, 2005 

ERDMANN, J., delivered the opinion of the court, in which 

GIERKE, C.J., and CRAWFORD, EFFRON, and BAKER, JJ., joined. 

Counsel 

For Appellant: Captain L. Martin Powell (argued); Major Terry 

L. McElyea (on brief). 

For Appellee: Captain Stacey J. Vetter (argued); Colonel 

LeEllen Coacher and Lieutenant Colonel Robert V. Combs (on 

brief). 

Military Judge: Thomas W. Pittman 

This opinion is subject to revision before final publication. 
United States v. James, No. 04-0284/AF 

2

Judge ERDMANN delivered the opinion of the court. 

Airman Allan P. James pleaded guilty to using and 

distributing ecstasy in violation of Article 112a, Uniform Code 

of Military Justice (UCMJ), 10 U.S.C. § 912a (2000). He was 

sentenced to a dishonorable discharge, two years of confinement, 

forfeiture of all pay and allowances, and reduction to the grade 

of E-1. The convening authority approved the findings and 

sentence and granted James 120 days of administrative 

confinement credit under Rule for Courts-Martial (R.C.M.) 

305(k). On December 10, 2003, the United States Air Force Court 

of Criminal Appeals affirmed the findings and sentence in an 

unpublished opinion. United States v. James, No. ACM 34863 

(A.F. Ct. Crim. App. Dec. 10, 2003). 

A judge may limit a defendant’s cross-examination of a 

prosecution witness regarding the terms of a plea agreement 

entered into by the witness, so long as adequate inquiry into 

possible bias of that witness has been allowed through other 

lines of questioning. United States v. Nelson, 39 F.3d 705, 708 

(7th Cir. 1994). During James’s court-martial the military 

judge allowed the defense to cross-examine one of the 

prosecution’s witnesses concerning some aspects of the witness’s 

pretrial agreement. The military judge, however, precluded the 

defense from questioning the witness regarding a specific term 

of that agreement. We granted review of Issue I to determine 
United States v. James, No. 04-0284/AF 

3

whether the limitations placed on the cross-examination of the 

witness impermissibly infringed upon James’s Sixth Amendment 

rights.1

 

A member of a court-martial panel may be removed for cause 

if it is shown that he or she “has an inelastic opinion 

concerning an appropriate sentence for the offenses charged.” 

R.C.M. 912(f) discussion. During voir dire one of the potential 

members expressed reservations about discharging servicemembers 

who were convicted of minor drug crimes. She later agreed that 

if the evidence warranted, she would be able to vote for a 

punitive discharge. The military judge granted the Government’s 

challenge for cause against the member. We granted review of 

Issue II to evaluate whether the military judge’s decision to 

grant the challenge for cause was prejudicial error.2

 

 

1

 In Issue I we granted review of the following: 

WHETHER THE MILITARY JUDGE ERRED TO THE PREJUDICE OF 

APPELLANT'S SIXTH AMENDMENT RIGHT TO CONFRONT THE 

WITNESSES AGAINST HIM BY REFUSING TO PERMIT DEFENSE 

COUNSEL TO EXPLORE THE POTENTIAL BIAS OF PROSECUTION 

WITNESSES ARISING FROM PROMISES BY THE GOVERNMENT TO 

LIMIT PUNISHMENT OF THE WITNESSES IN EXCHANGE FOR 

COOPERATION WITH THE GOVERNMENT IN THE PROSECUTION OF 

APPELLANT. 

 

2

 In Issue II we granted review of the following: 

WHETHER THE MILITARY JUDGE ERRED IN GRANTING THE 

PROSECUTION'S CHALLENGE FOR CAUSE (OVER DEFENSE 

OBJECTION) AGAINST A COURT MEMBER. 
United States v. James, No. 04-0284/AF 

4

We find that the military judge did not err in regard to 

either ruling. His ruling limiting cross-examination did not 

impermissibly infringe on James’s Sixth Amendment rights and his 

grant of the Government’s challenge for cause was not an abuse 

of discretion. Accordingly, we affirm the decision of the Court 

of Criminal Appeals. 

I. Cross-Examination of Airman Basic Rose

Background 

 During the sentencing phase of the trial, the prosecution 

called Airman Basic Scott Rose, James’s alleged best friend, to 

testify against James. Rose testified that James had introduced 

him to ecstasy by providing him with his first ecstasy pill. He 

also testified about James’s use and distribution of ecstasy on 

a number of occasions. At the time of his testimony, Rose had 

been tried by a general court-martial, had pled guilty pursuant 

to a pretrial agreement, and had been sentenced. 

His pretrial agreement limited the period of confinement 

that could be approved by the convening authority to eighteen 

months. Although the maximum authorized punishment for Rose’s 

crimes included the possibility of confinement for fifty-two 

years, his adjudged sentence was eighteen months and a punitive 

discharge. At the time of Rose’s testimony he had not yet 

submitted clemency matters for the convening authority’s 

consideration. 
United States v. James, No. 04-0284/AF 

5

 During cross-examination of Rose, the defense attempted to 

explore Rose’s potential bias in favor of the Government by 

inquiring into Rose’s offenses and the terms of his pretrial 

agreement. The military judge allowed the defense some latitude 

to explore potential motives for Rose to fabricate testimony 

because of his pretrial agreement. He ruled, however, that the 

terms of Rose’s pretrial agreement concerning the maximum 

punishment the convening authority could approve were not 

relevant. 

In response to questioning by the defense and trial 

counsel, Rose acknowledged: (1) that he had a pretrial 

agreement in his own court-martial; (2) that as part of that 

pretrial agreement he pleaded guilty and entered into a 

stipulation of facts; (3) that he had immunity for his testimony 

in James’s court-martial; (4) that his pretrial agreement 

required him to cooperate with the Government against his best 

friend; and (5) that clemency was still pending in his case and 

as part of that process he would be able to tell the convening 

authority that he had cooperated and testified against James. 

Discussion 

Military Rule of Evidence 608(c) provides that “[b]ias, 

prejudice, or any motive to misrepresent may be shown to impeach 

the witness either by examination of the witness or by evidence 

otherwise adduced.” James argues that he was precluded from 
United States v. James, No. 04-0284/AF 

6

adequately exploring the bias and motives of a witness against 

him by the military judge’s rulings, in violation of his Sixth 

Amendment rights. He notes that in his pretrial agreement, Rose 

received a reduction in his possible sentence from fifty-two 

years to eighteen months. He argues that this potential 

windfall was relevant evidence of Rose’s bias in favor of the 

Government, regardless of the fact that Rose had already been 

sentenced to eighteen months and would not realize any actual 

benefit of the sentence limitation. 

The Government argues that the military judge exercised his 

discretion in placing reasonable limits on Rose’s crossexamination in order to avoid confusion of the issues. It 

contends that James had ample opportunity to explore Rose’s bias 

by exposing the fact that he was testifying pursuant to a 

pretrial agreement and by obtaining his admission that he might 

receive a benefit in the form of clemency from his testimony. 

The Government concludes that Rose’s failure to actually benefit 

from the agreement means that the terms of the agreement are not 

relevant to show possible bias. 

In United States v. Bahr, 33 M.J. 228, 232 (C.M.A. 1991), 

this court adopted the standard set forth by the Supreme Court 

in Delaware v. Van Arsdall, 475 U.S. 673 (1986), for determining 

whether cross-examination inquiring into the potential bias of a 

witness was properly limited: 
United States v. James, No. 04-0284/AF 

7

“[w]e have recognized that the exposure of a witness’ 

motivation in testifying is a proper and important 

function of the constitutionally protected right of 

cross-examination.” Davis [v. Alaska, 415 U.S. 308, 

316-17 (1974)] (citing Green v. McElroy, 360 U.S. 474, 

496 (1959)). It does not follow, of course, that the 

Confrontation Clause of the Sixth Amendment prevents a 

trial judge from imposing any limits on defense 

counsel’s inquiry into the potential bias of a 

prosecution witness. On the contrary trial judges 

retain wide latitude insofar as the Confrontation 

Clause is concerned to impose reasonable limits on 

such cross-examination based on concerns about, among 

other things, harassment, prejudice, confusion of the 

issues, the witness’ safety, or interrogation that is 

repetitive or only marginally relevant. 

475 U.S. at 678-79. Because this court has not had occasion to 

specifically address the scope of cross-examination that a judge 

should allow concerning pretrial agreements, it is helpful to 

review the federal circuit court decisions that have considered 

the issue. 

In United States v. Maceo, 947 F.2d 1191 (5th Cir. 1991), 

the Fifth Circuit found that the trial judge did not err when he 

limited the defense attorney’s cross-examination of a witness 

regarding the terms of his plea agreement. The court noted that 

“[t]he Confrontation Clause does not prohibit a trial judge from 

limiting cross-examination where the testimony would confuse the 

issues, is repetitive or only marginally relevant.” Maceo, 947 

F.2d at 1200 (citing Van Arsdall, 475 U.S. at 679). The court 

found that the jury was well aware of the terms of the plea 

agreement and that limiting the cross-examination simply 

precluded additional questioning on the subject. Id. 
United States v. James, No. 04-0284/AF 

8

In United States v. Nelson, the Seventh Circuit found that 

the Sixth Amendment rights of the defendants were not violated 

where the trial judge prevented defense counsel from asking two 

prosecution witnesses “what penalties they might have faced 

without plea bargains.” 39 F.3d 705, 707-08 (7th Cir. 1994). 

Defense counsel was allowed to impeach the motives of the 

witnesses by eliciting testimony that the witnesses were 

testifying under plea bargains as well as what benefits they 

were to receive from their agreements. Id. at 707. 

The court in Nelson discussed the limitations of crossexamination and noted that courts must initially distinguish 

between the “‘core values of the confrontation right and more 

peripheral concerns which remain within the ambit of the trial 

judge’s discretion.’” 39 F.3d at 709 (quoting United States v. 

Saunders, 973 F.2d 1354, 1358 (7th Cir. 1992)). Addressing the 

limitations imposed by the trial judge, the court found that 

there was no constitutional violation because the limitations: 

on cross-examination did not deny the defendants the 

opportunity to establish that the witnesses may have 

had a motive to lie; rather, the limitations denied 

them the opportunity to add extra detail to that 

motive. “‘The exposure of a witness’ motivation in 

testifying is a proper and important function of the 

constitutionally protected right of crossexamination.’” Van Arsdall, 475 U.S. at 678-79, 106 S. 

Ct. at 1435 (quoting Davis v. Alaska, 415 U.S. 308, 

316-17, 94 S. Ct. 1105, 1110, 39 L. Ed. 2d 347 

(1974)). But once this core function is satisfied by 

allowing cross-examination to expose a motive to lie, 

it is of peripheral concern to the Sixth Amendment how 

much opportunity defense counsel gets to hammer that 
United States v. James, No. 04-0284/AF 

9

point home to the jury. The trial court may preclude 

“cumulative and confusing cross-examination into areas 

already sufficiently explored to permit the defense to 

argue personal bias and testimonial unreliability.” 

United States v. Robinson, 832 F.2d 366, 373 (7th Cir. 

1987), cert. denied, 486 U.S. 1010, 108 S. Ct. 1739, 

100 L. Ed. 2d 203 (1988). 

 

Id. at 708. The court then went on to find that the trial judge 

had allowed the jury to hear enough evidence to make a 

“discriminating appraisal” of the witnesses’ motives and biases, 

and that he did not abuse his discretion in limiting crossexamination. Id.

Faced with somewhat different factual situations, other 

circuit courts have taken different views of the issue. In 

United States v. Roan Eagle, 867 F.2d 436 (8th Cir. 1989), a 

prosecution witness had pleaded guilty to manslaughter instead 

of murder as part of her plea agreement but had not yet been 

sentenced. The Eighth Circuit found that under those 

circumstances an inquiry into the terms of the agreement was 

essential. The court noted that the information is especially 

relevant if the witness has not yet been sentenced because 

“there is a continuing incentive to give testimony that 

strengthens the prosecution’s case.” Id. at 443. 

In United States v. Schoneberg, 388 F.3d 1275 (9th Cir. 

2004), the prosecution witness was a coconspirator whose plea 

agreement required his cooperation with the Government. The 

jury was made aware of the plea agreement and also was told that 
United States v. James, No. 04-0284/AF 

10

a term of the plea agreement reserved the possibility of a 

sentence reduction after the witness testified against his 

coconspirators. That term required the Government to file a 

post-sentencing motion to reduce the witness’s sentence if it 

determined that he had provided “substantial assistance” to the 

Government through his testimony. Schoneberg, 388 F.3d at 1277-

78. 

The trial judge prohibited the defense attorney from crossexamining the witness as to whether his testimony was affected 

by the Government’s promise to move for a sentence reduction if 

he provided them with “substantial assistance.” Id. The Ninth 

Circuit found that this prohibition had the effect of keeping 

from the jury the fact that the witness was conscious, 

throughout his testimony, that the Government and not just the 

jury was judging the truthfulness of his statements. The court 

found that this consciousness gave him a motive to lie in favor 

of the Government and therefore was a relevant area for crossexamination. Id. at 1280. 

Having reviewed the holdings in these cases, we conclude 

that the limitations placed on cross-examination by the military 

judge were within his discretion and did not affect James’s core 

constitutional right to cross-examination. The members knew 

that Rose had received an agreement in exchange for his 

testimony and that pursuant to that agreement he had pleaded 
United States v. James, No. 04-0284/AF 

11

guilty and entered a stipulation of fact. They also knew that 

this agreement required him to cooperate with the Government in 

James’s prosecution. They knew that he had been granted 

immunity for his testimony in James’s trial. Finally, they 

knew that his clemency hearing was still pending and that he 

would be able to tell the convening authority that he had 

cooperated in James’s prosecution. As the Seventh Circuit noted 

in Nelson, once the defendant has been allowed to expose a 

witness’s motivation in testifying, “it is of peripheral concern 

to the Sixth Amendment how much opportunity defense counsel gets 

to hammer that point home to the jury.” Nelson 39 F.3d at 708. 

Additionally, we find it important to consider that 

although Rose entered into a pretrial agreement that promised a 

substantial reduction in sentence if he cooperated with the 

Government, he already had been sentenced to eighteen months of 

confinement by members who had no knowledge of the terms of the 

pretrial agreement. This is distinguishable from both Roan 

Eagle and Schoneberg where the witnesses had yet to receive the 

benefit of their bargain with the Government and were therefore 

under a continuing obligation to comply with their agreements to 

testify against the defendant to obtain the promised relief. 

Rose’s only “continuing incentive” identified in this case was 

that his clemency appeal was pending before the convening 

authority and if he testified favorably he would be able to 
United States v. James, No. 04-0284/AF 

12

inform the convening authority that he cooperated with the 

Government in James’s trial. As noted above, the military judge 

allowed the defense to bring these facts to the attention of the 

members and expose Rose’s potential bias and motive to lie. 

A military judge has wide discretion to limit repetitive 

cross-examination or to prohibit cross-examination that may 

cause confusion. See Van Arsdall, 475 U.S. at 679. The 

military judge in this case properly exercised this discretion 

and we affirm the decision of the Court of Criminal Appeals. 

II. Voir Dire of Major Winkler

Background 

During voir dire of potential panel members, Major (Maj) 

Maryellen Winkler was questioned regarding her view of 

discipline in the Air Force and more specifically regarding her 

views on punishments for drug crimes. In responding to those 

questions Maj Winkler mentioned her concern over a newspaper 

article that she had seen regarding a large drug bust in which a 

number of Air Force members were caught and punished. Her 

testimony in response to questions from the trial and defense 

counsels and the military judge is as follows: 

Examination by Circuit Trial Counsel: 

Q. Major Winkler in response to one of my questions 

regarding progressive discipline, you said that you didn’t 

feel that a court-martial may be the appropriate starting 

point for someone who has admitted guilty to use and 

illegal distribution of drugs. Could you please expound on 

your answers to why you feel that way? 
United States v. James, No. 04-0284/AF 

13

A. I truly feel, looking at the individual, it almost 

feels like it is a one shot deal. You have one shot at 

making a mistake and then that’s it. Of course everyone has 

seen the Air Force Times showing the big drug bust in the 

Virginia area and all the airmen and airman basics, senior 

airman and what sentences they have received, etcetera, 

etcetera, and I thought about that before I even knew what 

this case was about and it was kind of shocking to me. 

Q. The length of time? 

A. The length of time and what they received, yes. 

Q. Will you be thinking about that back in the deliberation 

room? 

A. I’m human and that is just how I feel. Yes, I would 

be. It might be just my personality, it just might be 

looking at him, he’s young, does he just deserve one shot 

and hopefully not getting what they gotten. There is a 

conflict in my mind. But, I didn’t hear any of the 

evidence and I don’t know exactly what is going on, etc. 

Q. Let me ask you . . . do you think that drug use is more 

of a medical problem then [sic] . . . 

A. No, not at all. I guess maybe what I am thinking is 

that we are all young, we all do stupid stuff sometimes, 

and one mistake shouldn’t kill us . . . . 

. . . . 

Examination by Circuit Defense Counsel: 

Q. Ma’am, if the military judge instructs you that you are 

to consider -– I expect that he will instruct you that you 

are to consider the full range of punishments, from no 

punishment up to the maximum punishment, can you assure the 

court, both the government and defense, that you will do 

that? 

A. I think I can, because we are looking at him totally 

not as a young kid, we are looking at him as a military 

member too. 

. . . . 
United States v. James, No. 04-0284/AF 

14

 Examination by the Military Judge: 

Q. And let me just ask you, do you feel comfortable 

sitting on this case? 

A. No, I don’t. 

Q. And why is that? 

A. Just because, again, I have read -– you just see in the 

paper all the time and the punishments that the kids got, 

the young airmen got in Virginia -– we have no tolerance of 

drugs whatsoever in the military, which we know that. Yet 

on the other hand, I just feel that a young person 

shouldn’t be probably kicked out and put in jail or 

whatever. 

Q. I guess I am trying to get you to go ahead and conclude 

for me. What is the conclusion? 

A. I just feel that he deserves more of a shot than one 

error in his career. 

Q. When I asked you if you feel uncomfortable sitting in 

the case, do you feel that you can perform your duties in 

sitting on a case? 

A. Definitely, Sir, I can perform my duties. Would I 

feel comfortable with myself, yes, because it is my duty. 

Will I do the right thing? Yes, I will. 

. . . . 

Q. And you mentioned these Air Force Times articles that 

you have read . . . [.] 

. . . . 

A. Actually there was a big bust in Virginia, the 

Virginia area, I think there were about 20 people that were 

listed in the Air Force Times ranging anywhere from an 

airman basic -– I think the highest rank was a senior 

airman, I am not sure. Then I saw all their sentences and 

I was shocked, I was taken back. 

Q. At what? 
United States v. James, No. 04-0284/AF 

15

A. Their sentences. I really felt that while these –- 

again, I didn’t hear any of their cases, but I just 

thought, wow, these guys made a mistake and look at the 

punishment for this. I am not making myself clear am I? 

Q. No, it is important since you have had some obviously 

careful thought about the offense of which the accused is 

now before this court for sentencing, that you disclose to 

both parties what that careful thought is. Can you be fair 

to both the government and the accused in this case? 

A. Yes, I feel I can be fair, Sir. 

The prosecution challenged Maj Winkler for cause on the 

grounds of an “inelastic predisposition in favor of the 

defense.” The military judge granted the challenge stating: 

Well, my recollection is that she not only said she 

was shocked twice by a punitive discharge, but shocked 

by another form of punishment as well, that may have 

been confinement. She also said that. “She hated or 

hates to see the airmen kicked out for this offense” 

were the words I recall her using in reference to 

those discharges. She seemed almost relieved when I 

asked if she would be uncomfortable sitting on the 

court, as though it was going to be an opportunity for 

her not to have to sit on the court. I think at the 

same time she is professional enough to let us know 

that as much as she hates to see a sort of punishment 

like this, or as much as she is shocked, she is a 

professional officer, to let us know that she would 

try and do her best to be fair in performing her 

duties. It just seems to the court, from viewing her 

and viewing her expressions as she described the Air 

Force Times article in regard to those other cases, 

that she would have an extremely difficult time in 

sitting on this case and doing just what she promised 

to do, which was consider the entire range of 

punishments, just wavering a little bit in that area 

is cause for concern as well. I am going to grant the 

challenge for cause. 
United States v. James, No. 04-0284/AF 

16

Discussion 

 This court has held that an accused “‘has a constitutional 

right, as well as a regulatory right, to a fair and impartial 

panel.’” United States v. Strand, 59 M.J. 455, 458 (C.A.A.F. 

2004) (quoting United States v. Wiesen, 56 M.J. 172, 174 

(C.A.A.F. 2001)). A member may be removed for cause if it is 

shown that he or she should not sit “in the interest of having 

the court-martial free from substantial doubt as to legality, 

fairness, and impartiality.” R.C.M. 912(f)(1)(N). The 

discussion accompanying this rule provides that “an inelastic 

opinion concerning an appropriate sentence for the offenses 

charged” may be grounds for challenge under this provision. 

R.C.M. 912(f) discussion. The party that makes the challenge 

for cause has the burden of proving that grounds for a challenge 

exist. R.C.M. 912(f)(3). 

 Generally, this court has addressed challenges for cause 

where those challenges were denied.3

 In evaluating a military 

judge’s ruling on a challenge for cause, the court has found it 

appropriate to recognize the military judge’s superior position 

to evaluate the demeanor of court members. A military judge’s 

ruling on a challenge for cause will therefore not be reversed 

 

3

 It is only in cases involving the death penalty that the court 

has been asked to review a challenge for cause that was granted. 

See United States v. Curtis, 33 M.J. 101, 107 (C.M.A. 1991); 

United States v. Gray, 51 M.J. 1, 31-32 (C.A.A.F. 1999). 
United States v. James, No. 04-0284/AF 

17

absent a clear abuse of discretion. See United States v. 

McLaren, 38 M.J. 112, 118 (C.M.A. 1993); United States v. White, 

36 M.J. 284, 287 (1993). 

In evaluating challenges for cause based on claims of 

“inelastic attitude,” this court has held that “an unfavorable 

inclination toward an offense is not automatically 

disqualifying. ‘The test is whether the member’s attitude is of 

such a nature that he will not yield to the evidence presented 

and the judge’s instructions.’” McLaren, 38 M.J. at 118 

(citations omitted) (quoting United States v. McGowan, 7 M.J. 

205, 206 (C.M.A. 1979)). 

In the context of challenges brought by a defendant, this 

court has stated that “military judges must liberally grant 

challenges for cause.” United States v. Downing, 56 M.J. 419, 

422 (C.A.A.F. 2002); see also McLaren, 38 M.J. at 118 (quoting 

United States v. Glenn, 25 M.J. 278, 279 (C.M.A. 1987)). The 

“liberal grant” policy supports the UCMJ’s interest in ensuring 

that members of the military have their guilt or innocence 

determined “by a jury composed of individuals with a fair and 

open mind.” United States v. Smart, 21 M.J. 15, 18 (C.M.A. 

1985) (quoting United States v. Deain, 5 C.M.A. 44, 49, 17 

C.M.R. 44, 49 (1954)). It is a response to the unique nature of 

the military justice system “because in courts-martial 

peremptory challenges are much more limited than in most 
United States v. James, No. 04-0284/AF 

18

civilian courts and because the manner of appointment of courtmartial members presents perils that are not encountered 

elsewhere.” Id. at 19; see also Glenn, 25 M.J. at 279. Because 

the Government rather than the defendant brought this challenge 

for cause, we must first consider whether the “liberal grant” 

policy is applicable under those circumstances. 

Unlike the convening authority, who has the opportunity to 

provide his input into the makeup of the panel through his power 

to detail “such members of the armed forces as, in his opinion, 

are best qualified for the duty,” see Article 25(d)(2), UCMJ, 10 

U.S.C. § 825(d)(2)(2000); see also R.C.M. 503(a)(1), the 

defendant has only one peremptory challenge at his or her 

disposal.4

 See Glenn, 25 M.J. at 279. The liberal grant rule 

protects the “perception or appearance of fairness of the 

military justice system.” United States v. Dale, 42 M.J. 384, 

386 (1995). Given the convening authority’s broad power to 

appoint, we find no basis for application of the “liberal grant” 

policy when a military judge is ruling on the Government’s 

challenges for cause. 

 

4

 The staff judge advocate also may have the power to excuse 

members before the court-martial is assembled, and the trial 

counsel then still has one peremptory challenge during the 

court-martial itself. See R.C.M. 505(c)(1)(B); R.C.M. 

912(g)(1). The Government therefore has ample opportunity to 

affect the makeup of the panel before trial defense counsel has 

any opportunity for input. 
United States v. James, No. 04-0284/AF 

19

We turn next to the central question of whether the 

military judge’s finding that Maj Winkler “would have an 

extremely difficult time in sitting on this case and doing just 

what she promised to do, which was consider the entire range of 

punishments,” was clearly erroneous. Maj Winkler repeatedly 

expressed concern with the harsh punishments handed out for drug 

crimes in the Air Force. She clearly expressed her feeling that 

“we are all young, we all do stupid stuff sometimes, and one 

mistake shouldn’t kill us.” She also stated that she would feel 

uncomfortable sitting as a member because of her beliefs. While 

Maj Winkler provided appropriate responses to rehabilitative 

questions, the military judge not only was able to hear her 

responses, he was able to evaluate her demeanor by “viewing her 

and viewing her expressions.” 

 We conclude that the military judge did not abuse his 

discretion in granting the Government’s challenge to Maj Winkler 

on the basis of an “inelastic predisposition.” The military 

judge found that Maj Winkler wavered when asked if she could 

consider the entire range of punishments and expressed her 

concerns regarding punishments in drug cases both verbally and 

nonverbally. We decline to find his conclusion that she would 

have trouble considering the entire range of punishments to be 

clearly erroneous. 
United States v. James, No. 04-0284/AF 

20

We also do not see evidence that the military judge applied 

the liberal grant policy in reaching his conclusion. The record 

reflects that he carefully considered all of Maj Winkler’s 

responses and her demeanor in reaching his conclusion. 

Accordingly, we affirm the decision of the Air Force court as to 

Issue II. 

DECISION

 The decision of the United States Air Force Court of 

Criminal Appeals is affirmed as to Issues I and II.