Sunday, March 23, 2008

Trial defense counsel -- don't throw out your 2005 MCMs

As we note below, hard copies of the 2008 MCM are supposedly now available. But trial defense counsel, please hang onto your 2005 MCM for ready access to the old R.C.M. 912(f)(4).

I have previously decried the 2005 MCM amendments' gutting of the accused's right to a peremptory challenge and the cynical, legally flawed accompanying drafters' analysis.

As the Kabul Klipper has previously argued, and as we previously discussed here, the new rule that peremptorily challenging a member against whom the military judge erroneously denied a challenge for cause waives the military judge's error violates the accused's statutory right to a peremptory challenge under Article 41(b)(1).

So, TDCs, whenever that scenario occurs in your cases, you must do two things. First, argue to the military judge that he or she must allow you another peremptory challenge due to his or her erroneous ruling on the challenge for cause. Second, assuming that you would, in fact, have peremptorily bounced another member but for the military judge denying the causal challenge, whip out your copy of the 2005 MCM and read from R.C.M. 912(f)(4): "[The defense] would have exercised its peremptory challenge against another member if the challenge for cause had been granted." (Under the old R.C.M. 912(f)(4), I've seen military judges ask the TDC which member the defense would have challenged, so be prepared to answer that question.) That should preserve the issue so that your client's appellate defense counsel can attempt to reverse the findings and sentence (or, if a guilty plea, the sentence) by arguing that a Manual provision can't trump a statute and that the 2005 R.C.M. 912 revisions violate Article 36 because they are inconsistent with Article 41(b)(1). And please, please, please do this in an Air Force case soon so that I can try to beat the other services in getting this issue to CAAF.


Anonymous said...

Let's just do away with the peremptory challenge. Period.

Anonymous said...

CAAFlog, what would you say is the definitive hierarchy, from top-to-bottom, of legal authority?

1. US Constitution
2. Federal Statutes (UCMJ)
3. MCM
4. Service Regulation
5. Military Rules of Evidence
6. Drafter's Analysis

...many missing possibilities above. Curious for inputs.

John O'Connor said...

Anonymous #2, I think you have to switch #4 and #5. The Military Rules of Evidence are, as I understand it, promulgated by the President, so in the legal authority game of Stratego, I believe that trumps service regulations. In fact, the MREs are, I think, co-equal with the RCMs (which is what I take you to mean by #3 -- I think, strictly speaking, the MREs are part of the MCM).

I also would completely drop the Drafter's Analysis. It's expressly not legal authority.

I've said this before, but the hierarchy of authorities is not something that I thought was well-presented at NJS -- or at least I didn't get a good understanding of it when I was there. I think most counsel treat all authorities like we treat our kids -- we love them all equally.

Anonymous said...

Not true, we love the ones that favor our argument the most; thus the hierarchy changes if at all possible per factual scenario - there is no "definitive" because there is always an argument to be made & rarely is it as easy as one authority stating black when another states white.

No Man said...

Is anonymous #3 talking about his/her kids or legal authority? I agree auth the JOC, not a heirarchy that is well presented at NJS, and I won't chalk it up to one crim law professor. I think there is an institutional blind spot for it. Only those that serve in one of the appellate shops really get it. I don't know why that is, there is no great brain trust in appellate shoa, I just think that it is the only place you have time to ponder and practice those issues.