CAAF signals interest in member challenge case

A1C Michael V. Martinez was tried by a special court-martial for divers uses of methamphetamine. The military judge denied a challenge for cause against a court-martial member due to his attitude about drug offenses. During voir dire, the member -- Lt Col D -- stated that "as an ex-squadron commander -- former squadron commander -- I mean -- my guideline has always been that there's no room in my Air Force for people that abuse drugs . . . ." When the defense counsel later asked Lt Col D whether no punishment was "an option for you to consider in a case such as this" -- which involved divers uses of methamphetamine -- Lt Col D replied, "No." He explained that "there has to be punishment for it." After the military judge stepped in to explain that "[l]egally, the only thing you have to do is be able to consider [no punishment] as an option," Lt Col D said, "Yes I can do that." Later, during questioning by the military judge, Lt Col D said that despite his comment about "no room in my Air Force for people that abuse drugs," he had not made up his mind that A1C Martinez must automatically be discharged.

The military judge denied the defense's causal challenge to Lt Col D. The military judge ruled:

I don't believe that there's any basis for challenge for cause. I believe his comment was sufficient -- in my mind -- to indicate that he had not made up his mind that -- in fact, said so -- there was no requirement that Airman Martinez be automatically discharged -- receive a punitive discharge for the use of drugs -- and, so I'm convinced that he does not have a predisposition or inelastic disposition toward any type of punishment in this case.

AFCCA affirmed the military judge's ruling in an unpublished opinion. United States v. Martinez, No. ACM S31080 (A.F. Ct. Crim. App. Jan. 2, 2008) (per curiam). AFCCA emphasized that "Lt Col D never claimed that all drug usage warrants a punitive discharge. He simply indicated that he has concerns with keeping drug users in '[his] Air Force.' Such a sentiment from a career officer is not evidence of actual bias when that same officer agrees to consider all of the evidence and all of the punishment options." Id., slip op. at 9.

AFCCA didn't view Lt Col D's "no room" and no-no-punishment comments as a basis for challenge; rather, AFCCA viewed them as enhancing his qualifications to sit as a member: "Both of these comments are answers that demonstrate a level of candor that we want and encourage from court members so that both parties can effectively use their peremptory challenges. Clearly, candor by members does not undermine the public's perception of the fairness in the military justice system." Id., slip op. at 10. AFCCA later continued its praise: "Lt Col D's comments demonstrate a level of professional commitment to the unique requirements of military service and the importance of good order and discipline in the military. These qualities alone neither create a perception of unlawful command influence nor serve as a basis for an assertion of implied bias." Id.

A1C Martinez petitioned CAAF. United States v. Martinez, __ M.J. ___, No. 08-0375/AF (C.A.A.F. Mar. 3, 2008). I understand that his counsel then filed a supp and JAJG filed a 10-day letter. But yesterday, CAAF ordered the Government to "submit an answer to the supplement within 15 days." United States v. Martinez, __ M.J. ___, No. 08-0375/AF (C.A.A.F. July 24, 2008). The defense then has five days to reply.

While CAAF's order certainly doesn't guarantee that it will grant review, it reflects CAAF's continued interest in the growth industry of members challenge cases.