2008 (September Term)
United
States v. Martinez, 67 M.J. 59 (an accused is
entitled to a fair and impartial
panel of members; consistent with that enjoinder, the accused is
entitled to
have his case heard by members who are not predisposed or committed to
a
particular punishment, or who do not possess an inelastic attitude
toward the
punitive outcome).
United
States v. Elfayoumi, 66 M.J. 354 (as a matter of
due process, an
accused has a constitutional right, as well as a regulatory right, to a
fair
and impartial panel).
United
States v. Adams, 66 M.J. 255 (a court-martial
composed of members who are
barred from participating by operation of law, or who were never
detailed by
the convening authority, is improperly constituted and the findings
must be set
aside as invalid).
(the convening authority’s
failure to transfer
members named in previous special convening orders to the final special
order
convening appellant’s court-martial was administrative error, rather
than
jurisdictional error, that did not materially prejudice the substantial
rights
of appellant, where none of the members who participated in the
court-martial
was an interloper, where each member was selected by the convening
authority to
consider the charges against appellant, where there was no evidence
that the
convening authority excused any of the members who sat on appellant’s
court-martial,
where there was also no evidence that the convening authority withdrew
the
charges in order to refer them to a new court-martial, and more
important,
where the record reflects that the members named in final special order
were
selected to bring the court-martial up to quorum and were not selected
to serve
as a separately constituted court-martial).
(law enforcement
personnel are not per se
disqualified from service as court members; if status as a law
enforcement
officer is not a disqualification, it follows that a mere familial
relationship
with a member of the law enforcement community creates no greater basis
upon
which to disqualify a member than law enforcement status itself).
(lawyers are not per se
disqualified as
court-martial members unless they have served in one of the capacities
explicitly set forth as a disqualification in the UCMJ; it follows that
one who
only aspires to become a lawyer is not disqualified and presents no
greater
threat to the fairness of a proceeding than does a court member who is
a fully
trained and licensed attorney).
United
States v. Brown, 65 M.J. 356 (military
criminal practice requires neither
unanimous panel members, nor panel agreement on one theory of
liability, as
long as two-thirds of the panel members agree that the government has
proven
all the elements of the offense).
2007
(complete candor is expected
from court members during voir dire; anything less undermines the
purpose of the member selection process at trial and, in turn,
potentially deprives an accused of an impartial determination of guilt
and a fair trial).
(if a court member learns of
information during the trial which makes an earlier response to a voir
dire question inaccurate, the member should so advise the court; the
duty of candor does not stop at the end of voir dire but is an
obligation that continues through the duration of the trial; it makes
no difference whether the member knew during voir dire that his
response to a question was incorrect or whether he later realized, or
reasonably should have realized, that his initial response was
incorrect -- the duty to honestly inform the court is the same).
(a panel member is not the
judge of his own qualifications; the duty to disclose cannot be
dependent upon the court member’s own evaluation of either the
importance of the information or his ability to sit in judgment; just
as honest disclosure must be made in response to direct questions on
voir dire, honest disclosures must be made throughout the trial
regardless of the members’ own belief as to their ability to sit as
court members).
(there can be no doubt that a
question as to a potential member’s knowledge of a witness is material
to an accused’s right to expose potential biases in order to ensure an
impartial jury).
United States v. Terry, 64 M.J. 295 (the
impartiality of members is a core principle of the military justice
system, and the sine qua non for a fair court-martial).
2006
(RCM 912(f)(4)
states that when a challenge
for cause has been denied, failure by
the challenging party to exercise a peremptory challenge against
any
member shall constitute waiver of further consideration of the
challenge upon
later review; however, when a challenge for cause is denied, a
peremptory
challenge by the challenging party against any member shall preserve
the issue
for later review, provided that when the member who was unsuccessfully
challenged for cause is peremptorily challenged by the same party, that
party
must state that it would have exercised its peremptory challenge
against
another member if the challenge for cause had been granted; the
analysis to RCM
912(f)(4) explains that the requirement of preserving the objection for
the
record is designed to prevent a windfall to a party which had no intent
to
exercise its peremptory challenge against any other member; when the
requirements of RCM 912(f)(4) are met, an appellate court will not
apply waiver).
(where trial
defense counsel used his sole
peremptory challenge to remove a court member from the panel, and did
not state
on the record that the peremptory challenge would have been exercised
against
another member if the challenge for cause had been granted, any error
as to that
removed member was waived).
(trial defense
counsel preserved for appellate
review the issue whether the military judge abused his discretion in
denying a
defense causal challenge to a court-member where the defense counsel
had
previously used his single peremptory challenge against another member;
the
issue was not waived for failure to state on the record that the
challenge
would
have been used elsewhere; the waiver provision could not apply to the
challenged member because the defense counsel had used his single
peremptory
challenge against another member and did not have an additional
peremptory
challenge to use; trial defense counsel could not be required to state
that he
would have used a nonexistent peremptory challenge against another
member).
(the military
judge abused his discretion and
violated the liberal grant mandate in denying defense challenge of a
court
member for cause where that member revealed that the alleged rape
victim’s
responsibilities for his flight gear included packing his parachute and
servicing his flight helmet; in an acquaintance rape case where the
credibility
of the alleged victim was the linchpin of the case, the member’s
significant
relationship of trust with the alleged victim would diminish the public
perception of a fair and impartial court-martial panel, undermine the
appearance of fairness in the military justice system, and give rise to
implied
bias).
(military judges
must follow the liberal-grant
mandate in ruling on challenges for cause asserted by an accused; the
liberal
grant mandate recognizes the unique nature of military courts-martial
panels,
particularly that those bodies are detailed by convening authorities
and that
the accused has only one peremptory challenge).
United States v. Dobson, 63 M.J. 1 (a general
court-martial panel consists of not less than five members appointed by
the
convening authority; if an enlisted accused requests that the panel
include
enlisted members, the membership must include enlisted members in a
number
comprising at least one-third of the total membership of the court,
subject to
an exception for physical conditions or military exigencies; whenever a
general
court-martial panel is reduced below five members, the trial may not
proceed
unless the convening authority details new members sufficient in number
to
provide not less than five members; the prohibition against proceeding,
however, is subject to the procedure for making and ruling on
challenges under
Article 41, UCMJ; Article 41 authorizes challenges for cause and
permits each
party to exercise one peremptory challenge; under Article 41(a)(2), if
the exercise
of a challenge for cause reduces the court below the total composition
requirement of a general court-martial, all parties shall either
exercise or
waive any challenge for cause then apparent against the remaining
members of
the court before additional members are detailed to the court; however,
peremptory challenges shall not be exercised at that time; under
Article
41(b)(2), if the exercise of a peremptory challenge reduces the court
below the
total composition requirement of a general court-martial, the parties
shall
either exercise or waive any remaining peremptory challenge (not
previously
waived) against the remaining members of the court before additional
members
are detailed to the court).
(under Article
41(a)(2), when challenges for
cause reduce panel membership below the minimum total number of members
required under Article 16, the military judge is not required to halt
the
proceedings until new members are appointed; instead, the parties
proceed with
any remaining challenges for cause before additional members are
detailed to
serve on the panel; the rule then provides that peremptory challenges
shall not
be exercised at that time; there is no mention in the statute of
applying a
similar procedure when the total number is adequate under Article 16
but the
percentage of enlisted membership is deficient under Article 25; there
is a
rational basis for distinguishing between a deficit under Article 16
and a
deficit under Article 25; the quorum requirement for a general
court-martial
under Article 16 involves an absolute number -- there must be at least
five
members; once membership drops below the total required by Article 16,
new
members will have to be detailed regardless of the exercise of
peremptory
challenges; by contrast, the enlisted representation requirement in
Article 25
employs a percentage, not an absolute number; as a result, there are
circumstances in which an enlisted representation deficit under Article
25 can
be corrected through exercise of a peremptory challenge against an
officer; because
it is possible that exercise of a peremptory challenge could preclude
the need
for appointment of new members under Article 25, the omission of
Article 25
from Article 41 is not a drafting error and does not otherwise warrant
an
interpretation of Article 41 to include Article 25).
(the military
judge properly ruled that the
parties could still exercise peremptory challenges when the panel
contained
sufficient members to meet the total composition requirements of a
general
court-martial under Article 16, but the proportion of enlisted members
fell
below the one-third representation requirement of Article 25, because
the
composition of the court-martial under Article 25 is not a pertinent
factor for
the purposes of determining the timing of peremptory challenges under
Article
41).
(after the
court-martial panel had fallen below
the required enlisted representation under Article 25, the addition of
officer
members to the court-martial panel in addition to enlisted members was
not
improper under RCM 505(c)(2)(B), which permits additions when the total
number
of members has been reduced below quorum or the number of enlisted
members has
been reduced below one-third of the panel’s membership, notwithstanding
the
accused’s objection that such action unfairly diluted his right to
enlisted
representation).
(an enlisted
accused who requests enlisted
membership on a court-martial panel under Article 25(c)(1) is entitled
by the
statute only to a minimum proportion -- at least one-third of the total
membership of the court; RCM 505(c)(2)(B) limits the circumstances
under which
a convening authority may add members to the panel, but it does not
require the
authority to add only the minimum number and type necessary to address
any
deficit under Articles 16 or 25; neither the statute nor the rule
entitles an
enlisted accused to maintain the proportion of officer and enlisted
members
that was contained in the initial convening order or at any other point
during
trial).
2005
United
States v. Richardson, 61 M.J. 113 (as a matter of due process, an
accused
has a constitutional right, as well as a regulatory right, to a fair
and
impartial panel).
2004
United
States v. Strand, 59 MJ 455 (an accused has a
constitutional
right, as well as a regulatory right, to a fair and impartial panel;
RCM
912(f)(1)(N) requires that a member be excused for cause whenever it
appears
that the member should not sit as a member in the interest of having
the
court-martial free from substantial doubt as to legality, fairness, and
impartiality; while this rule applies to both actual and implied bias,
the
thrust of this rule is implied bias and the perception or appearance of
fairness of the military justice system; the rule reflects the
President’s
concern with avoiding even the perception of bias, predisposition, or
partiality).
(it
is clear that a military judge may excuse a member sua sponte).
United
States v. Dowty, 60 MJ 163 (In Article 25, Congress
has
provided members of the armed forces with a valuable protection by
requiring
that the convening authority personally select those members of the
armed
forces best qualified to serve as court members by reason of judicial
temperament
and related statutory criteria).
2003
United
States v. Dugan, 58 MJ 253 (long recognized and
very
substantial concerns support the protection of jury deliberations from
intrusive inquiry; as a result, deliberations of court-martial members
ordinarily are not subject to disclosure; the purpose of this rule is
to
protect freedom of deliberation, protect the stability and finality of
verdicts, and protect court members from annoyance and embarrassment).
(under Mil.R.Evid. 606(b), there are three circumstances that
justify
piercing the otherwise inviolate deliberative process to impeach a
verdict or
sentence: (1) when extraneous information has been improperly brought
to the
attention of the court members; (2) when outside influence has been
brought to
bear on a member; and (3) when unlawful command influence has occurred;
appellant’s case involves the first and third of these categories).
(the
general and common
knowledge a court member brings to deliberations is an intrinsic part
of the
deliberative process, and evidence about that knowledge is not
competent
evidence to impeach the members’ findings or sentence).
(even if one member did tell the others that appellant would receive
substance abuse counseling if sentenced to confinement, and even if the
others
did factor that into their sentence determination, it would not involve
extraneous prejudicial information; to the contrary, it would fall
squarely
within the deliberative process which is protected by Mil.R.Evid.
606(b); thus,
it cannot be considered by this or any other court as impeaching the
validity
of appellant’s sentence).
United
States v. Mack, 58 MJ 413 (the responsibility for
the
composition of a court-martial panel rests with the convening
authority; when a
service member exercises the right to request a panel that includes
enlisted
members, the convening authority must ensure compliance with the
statutory
requirement that enlisted members compose at least one-third of the
panel; the
convening authority may accomplish this through a variety of actions,
including
orders that automatically add specific members to the panel upon the
occurrence
of well-defined triggering events).
(when a convening authority refers a case for trial before a panel
identified
in a specific convening order, and the convening order identifies
particular
members to be added to the panel upon a triggering event, the process
of
excusing primary members and adding the substitute members involves an
administrative, not a jurisdictional matter; absent objection, any
alleged
defects in the administrative process are tested for plain error).
United
States v. Diaz, 59 MJ 79 (there are limits to what
a panel
can be expected to disregard; the human mind of a member is not a
blackboard
where the judge, by a curative instruction, can irrevocably erase
powerful
inadmissible evidence).
2002
United
States v. Humpherys, 57 MJ 83 (impartial
court-members are
a sine qua non for a
fair
court-martial, and voir
dire
is an important method for identifying a member whose impartiality
might be
questioned).
2000