tag:blogger.com,1999:blog-34853720.post708694708325656950..comments2023-08-24T10:39:23.460-04:00Comments on CAAFlog: A disturbing thought about Briggs and ClayDwight Sullivanhttp://www.blogger.com/profile/11657981110237418710noreply@blogger.comBlogger8125tag:blogger.com,1999:blog-34853720.post-42417904761965803852007-01-26T14:16:00.000-05:002007-01-26T14:16:00.000-05:00P.S. A bit of irony -- If my argument above is cor...P.S. A bit of irony -- If my argument above is correct and Weisen really did inspire the amendment, the amendment would do nothing to change the outcome: Weisen was an "implied bias" case.rklanthttps://www.blogger.com/profile/14621640364264570286noreply@blogger.comtag:blogger.com,1999:blog-34853720.post-56648801082124064122007-01-26T14:04:00.000-05:002007-01-26T14:04:00.000-05:00I think the Art. 41 argument would have to be the ...I think the Art. 41 argument would have to be the way to go, but is it really enough to get round Martinez-Salazar? I think the best that could be done is to make a "military due process" argument, that the right to peremptories at courts-martial is of a far higher order than in civilian courts, for all the reasons discussed above. I'd also probably wait for an "implied bias" to challenge the rule. In Miles (58 MJ 192), the majority didn't even directly address the dissent's reliance on Martinez-Salazar to argue "harmless error", because "implied bias" by its very nature is not dealing with actual prejudice but is dealing the perception or appearance of fairness of the military justice system. The amendment does not distinguish between the grounds for the challenges, thus the QP: Can the President lawfully promulgate a rule that promotes the perception or appearance of unfairness of the military justice system? <br /><br />As to how to preserve the issue at trial, is it just me or is it even easier now that the rule has been amended? With the 5th sentence deleted, there's no longer any requirement to state that the peremptory would have been used against another member. Then, with the revision to the fourth sentence, it appears that all you'd have to do to avoid the purported waiver is: (1) do not pre-empt the challenged member (and hope the trial counsel doesn't) and 2) pre-empt "any [other]member. Of course, you might face the waiver argument from the concurrence in Martinez-Salazar, but in an actual bias case you'd be able to establish prejudice.rklanthttps://www.blogger.com/profile/14621640364264570286noreply@blogger.comtag:blogger.com,1999:blog-34853720.post-67686914886149146432007-01-26T13:32:00.000-05:002007-01-26T13:32:00.000-05:00I think the Columbus Clipper is on to something. ...I think the Columbus Clipper is on to something. Note Article 41(b)(1), saying that the accused (as well as the TC) is "entitled" to one peremptory challenge.Dwight Sullivanhttps://www.blogger.com/profile/11657981110237418710noreply@blogger.comtag:blogger.com,1999:blog-34853720.post-34484431042987770612007-01-26T12:37:00.000-05:002007-01-26T12:37:00.000-05:00I'm not aware that there was any amendment to Arti...I'm not aware that there was any amendment to Article 41 that corresponds to the rule change. Maybe not very creative, but what about a head-on argument that the new rule (perhaps as applied to the given case) violates Article 41's two-part promise of both excusals for good cause and one peremptory challenge. We're left with a "cafateria-style" Article 41 under the rule, at least in cases where the MJ screws up. We're entitled to both the surf of the challenge for cause and the turf of the peremptory.Marcus Fultonhttps://www.blogger.com/profile/14070796580668712006noreply@blogger.comtag:blogger.com,1999:blog-34853720.post-68848186052859432282007-01-26T10:47:00.000-05:002007-01-26T10:47:00.000-05:00What's the legal theory? The theory that "it just...What's the legal theory? The theory that "it just stinks" has seemed to have gotten some traction of late. I will say this, the theory isn't due process.John O'Connorhttps://www.blogger.com/profile/08014476389355562158noreply@blogger.comtag:blogger.com,1999:blog-34853720.post-17806795150491194782007-01-26T10:20:00.000-05:002007-01-26T10:20:00.000-05:00I think Fitzcarraldo (based on the 1982 movies of ...I think Fitzcarraldo (based on the 1982 movies of the same name?) makes a good point about how to litigate the issue. The counsel who perempts off the member who was unsuccessfully challenged for cause should certainly announce on the record that he or she would have perempted off a different member but for the denial of the challenge for cause forcing the defense to use its peremptory cause against the unsuccessfully challenged member.<br /><br />Now here's the hard part: what's the legal theory?Dwight Sullivanhttps://www.blogger.com/profile/11657981110237418710noreply@blogger.comtag:blogger.com,1999:blog-34853720.post-36758801237472241042007-01-26T09:39:00.000-05:002007-01-26T09:39:00.000-05:00That's a good point. What do we need to make an a...That's a good point. What do we need to make an appellate issue out of this? Because I'm still working my way through cases that went to trial in 2005, I'm not surprised that I haven't encountered it on my USAF appellate docket yet. At a minimum, I'm thinking the trial defense counsel would have to state which member he or she would have challenged with the peremptory, had the challenge for cause been granted. Can you think of anything else?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-34853720.post-70710751360654595392007-01-26T08:35:00.000-05:002007-01-26T08:35:00.000-05:00Dwight: You are absolutely correct. The new rule ...Dwight: You are absolutely correct. The new rule was designed to circumvent the rights of the accused. More proof that defense counsel need to serve on rules committees.Bill Cassarahttps://www.blogger.com/profile/12499647892985204048noreply@blogger.com