Monday, January 29, 2007

Terry unaffected by Wiesen MCM amendment

I previously noted that the result in Briggs and Clay would have been different had they been tried today, due to the R.C.M. 912(f)(4) change designed to compel a different result in United States v. Wiesen, 56 M.J. 172 (C.A.A.F. 2001). Not so Terry. In Terry, the member CAAF ruled should have been removed due to implied bias remained on the court-martial panel that convicted and sentenced Staff Sergeant Terry. So even if this case had arisen after the 2005 change to R.C.M. 912(f)(4), the results would have been the same.

--Dwight Sullivan


Marcus Fulton said...

Is this conclusion based on RKlant's reasoning of a couple days ago?

CAAFlog said...

No -- this conclusion is based on a straight application of the current language of R.C.M. 912(f)(4). Under the rule, if the member who was challenged stays on the panel, the issue is preserved. If the defense bounces the member with its peremptory challenge, the issue isn't preserved. Your idea about using the statutory language as a grounds to trump the R.C.M. would be necessary in a case like Briggs or Clay where the defense perempted the challenged member off. But no additional legal theory is necessary in a case like Terry where the challenged member remained.

Marcus Fulton said...

Aha. Forgot that you could leave the biased member on to preserve the issue. Sounds like a plan.