UNITED STATES, Appellee

v.

Jordan M. PETERS, Specialist

U.S. Army, Appellant

No. 14-0289

Crim. App. No. 20110057

United States Court of Appeals for the Armed Forces 

Argued October 21, 2014

Decided February 12, 2015

BAKER, C.J., delivered the opinion of the Court, in which 

ERDMANN and OHLSON, JJ., joined. STUCKY and RYAN, JJ., each 

filed a separate dissenting opinion. 

Counsel

For Appellant: Captain Payum Doroodian (argued); Colonel Kevin 

Boyle and Major Amy E. Nieman (on brief); Major Vincent T.

Schuler and Captain Ian M. Guy.

For Appellee: Captain Timothy C. Erickson (argued); Colonel 

John P. Carrell, Lieutenant Colonel James L. Varley and Major 

John Choike (on brief); Captain T. Campbell Warner.

Military Judge: Mark Bridges 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Peters, No. 14-0289/AR

2

Chief Judge BAKER delivered the opinion of the Court. 

A general court-martial composed of officer and enlisted 

members convicted Appellant, based on mixed pleas, of drunken 

operation of a vehicle, causing injury because of that drunken 

operation, two specifications of involuntary manslaughter, and 

aggravated assault in violation of Article 111, Uniform Code of 

Military Justice (UCMJ), 10 U.S.C. § 911 (2012); Article 119, 

UCMJ, 10 U.S.C. § 919 (2012); Article 128, UCMJ, 10 U.S.C. § 928 

(2012).1

 He was sentenced to ten years of confinement, 

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

E-1, and a bad-conduct discharge. The convening authority 

approved the findings and the sentence except for a reduction of 

the period of confinement to nine years and six months. The 

United States Army Court of Criminal Appeals affirmed the

findings and sentence as approved by the convening authority. 

This Court granted review of the following issue: 

WHETHER THE MILITARY JUDGE ERRED IN DENYING THE 

IMPLIED BIAS CHALLENGE AGAINST [LIEUTENANT COLONEL 

COOK], IN LIGHT OF [HIS] PROFESSIONAL RELATIONSHIP 

WITH TRIAL COUNSEL, THE SPECIAL COURT-MARTIAL 

CONVENING AUTHORITY, AND THE INVESTIGATING OFFICER. 

For the reasons set forth below, we conclude that the 

military judge abused his discretion when he denied the 

 

1 Appellant was also charged with, and pled not guilty to, one 

specification under Article 134, UCMJ, 10 U.S.C. § 934 (2012),

but the charge was dismissed after the findings of guilty and 

before the sentence upon a defense motion.
United States v. Peters, No. 14-0289/AR

3

challenge for cause against Lieutenant Colonel (LTC) Cook. 

There is no per se rule of disqualification when a member knows 

or has worked with trial counsel or defense counsel. Rather, 

such relationships are evaluated through the lens of Rule for 

Courts-Martial (R.C.M.) 912(f)(1)(N) and the doctrines of actual 

and implied bias. This case is a close case and a rare case

where the record reflects a qualitative bond rising to the level 

of implied bias. Therefore the military judge abused his 

discretion by not applying the liberal grant mandate. Thus, we 

reverse. 

Background

Appellant elected to be tried by a panel of both officer 

and enlisted members. One of the officers placed on the panel 

was LTC Cook, a battalion commander with the 2nd Brigade Combat 

Team, 4th Infantry Division. Prior to trial, counsel had an 

opportunity to voir dire LTC Cook, who disclosed that he had a 

professional relationship with Captain (CPT) Krupa, the trial 

counsel in this case. Specifically, CPT Krupa served as a judge 

advocate for LTC Cook’s brigade. 

During voir dire, LTC Cook informed counsel and the 

military judge that he sought CPT Krupa’s legal advice on a 

regular basis, including the night before voir dire, on an 

unrelated military justice issue. LTC Cook was aware that CPT

Krupa was involved with this case when they spoke on the phone
United States v. Peters, No. 14-0289/AR

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and stated that their phone conversation likely ended with the 

words, “see you tomorrow.”

LTC Cook also called CPT Krupa after being summoned to 

serve on the court-martial panel:

[LTC Cook:] [A]s soon as I was notified last week that you 

know -- I was talking to Captain Krupa again about another 

legal matter and it was -- I said, “Hey, I’ve been summoned 

to be a court-martial panel member for a case that involves 

the brigade,” and Captain Krupa said, “Sir, I’m aware of 

that, and it’s a -- sir, it’s not uncommon practice.” I 

said, “Okay.” Because I was filling out my questionnaire 

on whether or not I -- to be a court-martial panel member, 

or assessing, you know, how to deal with my schedule and be 

able to serve on this court-martial, and so as we discussed 

an investigation that was under legal review, I did say, 

“Hey, I’ve been summoned to be on this court-martial.” 

During voir dire, LTC Cook also volunteered that he knew 

Colonel (COL) Kolasheski, the brigade commander who forwarded 

Appellant’s charges for court-martial. When asked about that 

relationship, he said that COL Kolasheski was his “rater and 

boss,” but that the relationship would “not affect my ability to 

be fair and impartial in this case.” Additionally, when asked 

whether “any member [is] aware of any matter that might raise 

substantial question concerning your participation in this 

trial,” LTC Cook raised his hand because Major (MAJ) Krattiger, 

the investigating officer assigned to Appellant’s case, was LTC 

Cook’s executive officer (XO).

Appellant objected to LTC Cook’s panel membership because 

of these three relationships. In opposing the challenge, trial 
United States v. Peters, No. 14-0289/AR

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counsel (CPT Krupa) -- whose own relationship with LTC Cook was 

in question -- provided what amounted to a personal endorsement 

of LTC Cook’s character as argument that he should remain on the 

panel: 

[TC:] Colonel Cook is one of the most conscientious and 

thoughtful commanders within the brigade. . . . He takes 

this incredibly seriously as evidenced by his answers. 

The military judge denied Appellant’s implied bias challenge and 

also relied on LTC Cook’s character as the basis for that 

decision: 

[MJ:] I can’t say enough about how I believe that his [LTC 

Cook’s] demeanor, his thoughtful answers to the questions 

that were asked indicate to me that he is truthful and that 

he can be an impartial panel member in this case. 

In discussing his findings, the military judge also summarily 

stated that he had considered the legal test for implied bias, 

including the requirement that the liberal grant mandate be 

considered:

[MJ:] Concerning implied bias, implied bias exists if an 

objective observer would have a substantial doubt about the 

fairness of this court-martial proceeding. And I think 

that an objective observer who heard Colonel Cook and saw 

Colonel Cook responding to the questions of counsel would 

not have any reason to doubt his impartiality in this case. 

So, I don’t believe that there’s actual or implied bias 

established in this case. And I am considering the liberal 

grant mandate that the Appellate Courts have asked me to 

consider in deciding whether or not to grant these 

challenges. I have considered actual and implied bias with 

respect to that. And again, I find no reason to grant a 

challenge for cause against Lieutenant Colonel Cook. 
United States v. Peters, No. 14-0289/AR

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Standard of Review

We review 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. Moreno, 63 

M.J. 129, 134 (C.A.A.F. 2006); United States v. Napoleon, 46 

M.J. 279, 283 (C.A.A.F. 1997). Whereas a military judge can 

“observe the demeanor of the court members” in order to 

determine credibility in the case of actual bias, cases of 

implied bias are based upon an objective test and therefore the 

military judge is given less deference in such cases. United 

States v. Miles, 58 M.J. 192, 194-95 (C.A.A.F. 2003). 

The military judge is also mandated to err on the side of 

granting a challenge. This is what is meant by the liberal 

grant mandate. See United States v. Rome, 47 M.J. 467, 469 

(C.A.A.F. 1998). Because “the interests of justice are best 

served by addressing potential member issues at the outset of 

judicial proceedings . . . . in close cases military judges are 

enjoined to liberally grant challenges for cause.” United 

States v. Clay, 64 M.J. 274, 277 (C.A.A.F. 2007). In other 

words, if after weighing the arguments for the implied bias 

challenge the military judge finds it a close question, the 

challenge should be granted. This mandate stems from a longstanding recognition of certain unique elements in the military 

justice system including limited peremptory rights and the 
United States v. Peters, No. 14-0289/AR

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“‘manner of appointment of court-martial members [that] presents 

perils that are not encountered elsewhere.’” United States v. 

James, 61 M.J. 132, 139 (C.A.A.F. 2005) (quoting United States 

v. Smart, 21 M.J. 15, 19 (C.M.A. 1985)). It also serves as a 

preventative measure because “it is at the preliminary stage of 

the proceedings that questions involving member selection are 

relatively easy to rapidly address and remedy.” Clay, 64 M.J.

at 277.

This Court has previously noted that although it “‘do[es] 

not expect record dissertations’” from the military judge’s 

decision on implied bias, it does require “‘a clear signal that 

the military judge applied the right law.’” Id. (quoting United 

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

Incantation of the legal test without analysis is rarely

sufficient in a close case. This is a close case. Where a 

military judge determines not to grant the challenge, additional 

analysis on the record will better inform appellate courts in 

their review and determination as to whether there was an abuse 

of discretion. Downing, 56 M.J. at 422. We will afford a

military judge less deference if an analysis of the implied bias 

challenge on the record is not provided. See United States v. 

Bagstad, 68 M.J. 460, 462 (C.A.A.F. 2010) (citing United States 

v. Richardson, 61 M.J. 113, 120 (C.A.A.F. 2005)). 
United States v. Peters, No. 14-0289/AR

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Implied Bias

R.C.M. 912(f)(1)(N) sets the basis for an implied bias 

challenge, which stems from the “historic concerns about the 

real and perceived potential for command influence” in courtsmartial. Clay, 64 M.J. at 277. Unlike the test for actual 

bias, this Court looks to an objective standard in determining 

whether implied bias exists. United States v. Wiesen, 56 M.J. 

172, 175 (C.A.A.F. 2001). 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. 

Rome, 47 M.J. at 469 (C.A.A.F. 1998). In reaching a 

determination of whether there is implied bias, namely, a 

“perception or appearance of fairness of the military justice 

system,” the totality of the circumstances should be considered. 

United States v. Dale, 42 M.J. 384, 386 (C.A.A.F. 1995). While 

cast as a question of public perception, this test may well 

reflect how members of the armed forces, and indeed the accused, 

perceive the procedural fairness of the trial as well.2

 

2 At times, this Court has also cast the test as one asking 

“whether most people in the same position would be prejudiced.” 

Wiesen, 56 M.J. at 174 (quoting United States v. Armstrong, 54 

M.J. 51, 53-54 (2000) (internal quotation marks omitted). That 

may well inform the implied bias analysis, but this question is 

better oriented to objectively evaluate actual bias than to 

serve as the test for implied bias. 
United States v. Peters, No. 14-0289/AR

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Discussion

In determining whether the military judge abused his 

discretion, we turn first to his reasoning for denying the 

causal challenge. The military judge stated for the record that 

he had considered the mandate to generously grant challenges, 

but that he found “no reason to grant a challenge for cause.” 

He did not, however, engage the specific grounds for challenge 

of LTC Cook’s panel membership, including his relationship to 

CPT Krupa. Rather, his reasoning relied solely on LTC Cook’s 

demeanor and thoughtfulness in answering the voir dire 

questions. 

The military judge’s reasoning is problematic for two 

reasons. First, we test for implied bias not on the subjective 

qualities of the panel member, but on the effect that panel 

member’s presence will have on the public’s perception of 

whether the appellant’s trial was fair. Rome, 47 M.J. at 469. 

Thus, although a panel member’s good character can contribute to 

a perception of fairness, it is but one factor that must be 

considered in the context of the other issues raised concerning 

that individual’s panel membership. See United States v. 

Strand, 59 M.J. 455, 459 (C.A.A.F. 2004) (“In making judgments 

regarding implied bias, this Court looks at the totality of the 

factual circumstances.”). 
United States v. Peters, No. 14-0289/AR

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Second, the well-settled law that requires military judges 

to consider on the record whether to grant causal challenges 

exists not merely to have the words of the test preserved on the 

record, but to show that the grounds for the challenge were 

given serious and careful consideration in the first instance. 

Downing, 56 M.J. at 422 (“[W]here the military judge places on 

the record his analysis and application of the law to the facts, 

deference is surely warranted.”). Although the military judge 

here said he was considering the mandate, the record does not

provide further analysis as to why, given the specific factors 

in this case, the balance tipped in favor of denying the 

challenge. We therefore turn next to those specific factors to 

analyze whether, although absent from the military judge’s 

reasoning on the record, they support the finding that there 

were no grounds for granting the implied bias challenge. 

The Government rightly points out, and this Court well 

recognizes, that military communities and units are close-knit. 

Relationships among panel members and others involved in the 

case are unavoidable. We recognize it is not uncommon, nor 

inappropriate, for a panel member to be acquainted 

professionally with other individuals involved in the trial. As 

a result, there is no per se disqualification in circumstances 

where a member of a panel knows or has worked with trial counsel 

or defense counsel. United States v. Hamilton, 41 M.J. 22, 25 
United States v. Peters, No. 14-0289/AR

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(C.M.A. 1994). At the same time, M.R.E. 912 generally, and the 

Military Judges’ Benchbook specifically, directs counsel and 

military judges to explore such contacts, to ensure that they 

are not qualitatively of a sort that reflects the kind of bond 

that would undermine the fairness of a proceeding or raise the 

prospect of appearing to do so. See Richardson, 61 M.J. at 119 

(C.A.A.F. 2005) (the Court recognized the “qualitative nature of 

the relationships between trial attorneys and officers in the 

commands those attorneys advise” and thus emphasized “the 

importance of thorough voir dire in such circumstances”); 

Bagstad, 68 M.J. at 463 (Baker, C.J., dissenting, with whom 

Erdmann, J., joined); cf. Strand, 59 M.J. at 459 (the Court was 

“satisfied” with the “deliberate manner of the military judge’s 

voir dire” and thus did not find an abuse of discretion). 

When considering all the factors, this is a case where LTC 

Cook’s relationship to CPT Krupa could undermine the perception 

of fairness in the proceedings. LTC Cook regularly relied upon 

CPT Krupa for legal advice on military justice matters. He 

trusted that legal advice and believed that CPT Krupa did good 

work as a lawyer. As soon as LTC Cook was summoned to be a 

court-martial panel member in this case, he sought CPT Krupa’s 

input about whether it was common that someone from within the 

brigade serve on a panel. Despite knowing that he would be 

serving as a panel member in CPT Krupa’s case, LTC Cook also 
United States v. Peters, No. 14-0289/AR

12

called CPT Krupa the night before voir dire. They did not talk 

about Appellant’s case, but they did sign off the conversation

by saying “see you tomorrow.” Finally, in objecting to 

Appellant’s causal challenge, CPT Krupa relied upon his personal

knowledge of LTC Cook’s character to argue on behalf of keeping 

him on the panel. While the appearance would be more 

problematic were the member to have shown special trust and 

confidence in the integrity of the trial counsel, rather than 

trial counsel in the member, CPT Krupa’s “testimonial” on behalf 

of LTC Cook raised the appearance that there was a qualitative 

bond between counsel and member that could undermine perceptions 

of fairness. None of which is to suggest either officer did 

anything wrong. We should want and wish for especially strong 

bonds between judge advocates and the commanders they advise, 

provided such bonds do not carry over or appear to carry over 

into the trial proceedings. 

The test for implied bias, however, is not whether the 

panel member is subjectively a person of good character. See 

Miles, 58 M.J. at 194-95. Rather, we are concerned with how the 

public would perceive the fairness of a trial when, in this

case, the panel member’s relationship to trial counsel exceeds 

the norm. Thus, the effect of CPT Krupa’s personal appeal to 

LTC Cook’s character in opposing the implied bias challenge, in 

addition to the close working relationship and phone calls 
United States v. Peters, No. 14-0289/AR

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between the two, did not serve to overcome the issue of implied 

bias, but rather highlighted the grounds for why, in this case,

the public would question the fairness of Appellant’s trial. 

A professional relationship between a panel member and 

trial counsel is not per se a ground for granting an implied 

bias challenge. Here, however, the totality of the factors 

support the conclusion that Appellant had good grounds for 

challenging LTC Cook’s membership based on implied bias. LTC 

Cook and CPT Krupa’s relationship went beyond what would be 

perceived as fair to an appellant in the context of a typical

court-martial.3

Conclusion

Therefore, in this case, where the military judge did no 

more than invoke the implied bias doctrine and where the facts 

otherwise show an unusually strong bond between trial counsel 

and a member of the panel, we conclude that the military judge 

abused his discretion in not erring on the side of caution and 

excusing LTC Cook on the ground of implied bias. The decision 

of the United States Army Court of Criminal Appeals is reversed, 

 

3 As a result, we note, but do not ultimately address the two 

additional grounds for the implied bias challenge: COL

Kolasheski, who forwarded the charges, was LTC Cook’s “rater” 

and MAJ Krattiger, the investigating authority in the case, was 

LTC Cook’s XO. Although perhaps individually neither of these 

relationships would provide a sufficient ground on which to 

grant an implied bias challenge, their existence does contribute 

to the totality of the factors considered in determining that 

the challenge against LTC Cook should have been granted.
United States v. Peters, No. 14-0289/AR

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and the findings and sentence are set aside. The record of 

trial is returned to the Judge Advocate General of the Army. A 

rehearing may be authorized. 
United States v. Peters, No. 14-0289/AR 

STUCKY, Judge (dissenting):

The military judge did not err in declining to grant the 

challenge for cause against LTC Cook. In the first place, the 

judge did significantly more than simply invoke the liberal 

grant mandate on the record; he discussed LTC Cook’s responses 

to voir dire and analyzed his demeanor and impartiality in 

denying the challenge. Consequently, his analysis is entitled 

to deference. See United States v. Clay, 64 M.J. 274, 276

(C.A.A.F. 2007). 

Second, the military judge’s decision was the correct one. 

It is settled that “‘implied bias should be invoked rarely.’” 

Id. at 277 (quoting United States v. Leonard, 63 M.J. 398, 402 

(C.A.A.F. 2006)); see also United States v. Lavender, 46 M.J. 

485, 489 (C.A.A.F. 1997) (“[A]ppellant did not carry his burden 

at trial of showing that his case is the ‘rare exception’ 

justifying use of the implied-bias doctrine.”). In United 

States v. Downing, this Court upheld a military judge’s denial 

of a challenge for implied bias against a member who was a

professional colleague and friend of trial counsel, noting that 

an objective observer could distinguish between that 

relationship and one between “individuals whose bond of 

friendship might improperly find its way into the members’ 

deliberation room.” 56 M.J. 419, 423 (C.A.A.F. 2002). 
United States v. Peters, No. 14-0289/AR

2

There is no evidence in this case that the trial counsel 

and LTC Cook were personal friends, or that there existed any

special bond between them that might undermine the fairness of 

this court-martial. In a year’s time, trial counsel had advised 

LTC Cook only “[a] dozen” times. They never discussed 

Appellant’s case substantively. Further, LTC Cook specifically 

affirmed at voir dire that his relationship with trial counsel 

“will not affect my ability to be fair and impartial in this 

case.” These facts establish that the relationship consisted of

“formal and professional” contact “not indicative of special 

deference or bonding,” and that it was therefore permissible for 

LTC Cook to sit on the panel. United States v. Richardson, 61 

M.J. 113, 119 (C.A.A.F. 2005). 

The majority states that because LTC Cook trusted the 

advice of trial counsel, we should question LTC Cook’s judgment 

and impartiality. United States v. Peters, __ M.J. __, __ (11-

12) (C.A.A.F. 2015). It also relies on the words, “see you 

tomorrow,” as evidence of bias, as though the sign-off statement 

-- following a discussion of business matters -- was indicative 

of special deference or bonding. Id. at 12. And the majority

strongly criticizes trial counsel’s endorsement of LTC Cook’s 

character. Peters, __ M.J. at __ (5, 12). But the military 

judge explicitly and correctly disavowed consideration of trial 

counsel’s endorsement, interrupting him to say: “Captain Krupa, 
United States v. Peters, No. 14-0289/AR

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I’m going to stop you there. We’re not going to consider things 

that haven’t been admitted in this court, okay. Your own, 

outside of court, understanding of Colonel Cook is not 

relevant.” Rejecting trial counsel’s assessment of LTC Cook, 

the military judge made his own assessment of LTC Cook’s 

demeanor and responsiveness to voir dire questions, and decided 

to deny the challenge accordingly. 

I also do not see how trial counsel’s relationship with the 

panel member in this case is distinguishable from that in United 

States v. Castillo, __ M.J. __ (C.A.A.F. 2015). There, the 

trial counsel served with and provided military justice 

assistance to each of the four challenged members. See id. at 

__ (3-6). One member met regularly with trial counsel to 

discuss ongoing military justice matters within his battalion. 

Another consulted with trial counsel regarding an officer 

separation board resulting from allegations of larceny and rape. 

Both viewed trial counsel’s legal advice to be sound. The 

majority has not explained why the relationship in Peters

“exceeds the norm,” __ M.J. at __ (12), whereas the 

relationships in Castillo were so minor as to merit little 

mention of their relevance to implied bias challenges. 

Castillo, __ M.J. at __ (9). 

Finally, the majority appears to expand the ambit of the 

“public perception” test contrary to our case law by writing 
United States v. Peters, No. 14-0289/AR

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that the implied bias test “may well reflect how members of the 

armed forces, and indeed the accused, perceive the procedural 

fairness of the trial as well.” Peters, __ M.J. at __ (8). The 

accused’s perception of the fairness of his trial has never been 

part of the implied bias test. 

I agree that it is proper for counsel and military judges 

to explore professional contacts between panel members and trial 

or defense counsel, id. at __ (10-11), and in other 

circumstances such relationships might result in findings of 

implied bias. But this is not such a case. Under these 

circumstances, a public observer familiar with the military 

justice system would not doubt the fairness of the trial solely 

because of this professional relationship. I would affirm.
United States v. Peters, 14-0289/AR

RYAN, Judge (dissenting):

I agree with Judge Stucky that the military judge 

recognized and applied the correct law and engaged in voir dire 

to explore the relationship between trial counsel and the 

challenged member. Under our precedent he, therefore, did not 

abuse his discretion. United States v. Clay, 64 M.J. 274, 277

(C.A.A.F. 2007); United States v. Napoleon, 46 M.J. 279, 283 

(C.A.A.F. 1997). Although one might, as the majority does, 

conclude that another course of action would have been more 

appropriate, de novo review has never before been the standard 

of review where the military judge clearly recognized the 

correct law and made no erroneous factual determination. See, 

e.g., United States v. Armstrong, 54 M.J. 51, 54 (C.A.A.F. 

2000). It is unclear to me what level of excruciating detail 

the majority now requires of the trial judiciary when denying a 

member challenge. They do not have the luxury of time afforded 

appellate courts.

While a bright-line rule excluding members on the basis of 

implied bias where the trial counsel has advised the member 

might, as an empirical matter, be viewed as only fair by an 

objective member of the public, we rejected such a rule long 

ago. United States v. Rome, 47 M.J. 467, 469 (C.A.A.F. 1998)

(holding a member’s “professional relationship with the trial 

counsel was not per se disqualifying”); United States v. 
United States v. Peters, 14-0289/AR

2

Hamilton, 41 M.J. 22, 25 (C.M.A. 1994) (finding no “per se

ground for challenge” where three members had received legal 

assistance from the assistant trial counsel); see also United 

States v. Castillo, __ M.J. __, __ (1-2) (C.A.A.F. 2015) (Ryan, 

J., concurring in the result).

I respectfully dissent.