Thursday, January 25, 2007

A disturbing thought about Briggs and Clay

Posted below is the No Man's recap of today's three CAAF opinions, including Briggs and Clay. But here's a disturbing thought: if those two cases were tried today and the exact same things happened, the result would be affirmance rather than reversal.

The 2005 amendments to the Manual for Courts-Martial include the following:

(o) R.C.M. 912(f)(4) is amended by deleting the fifth sentence and by inserting the following words immediately after the words "When a challenge for cause has been denied" in the fourth sentence:

"the successful use of a peremptory challenge by either party, excusing the challenged member from further participation in the court-martial, shall preclude further consideration of the challenge of that excused member upon later review. Further,"

70 Fed. Reg. 60,697 (Oct. 18, 2005).

The drafters' analysis helpfully explains: "The United States is still livid over having lost United States v. Wiesen, 56 M.J. 172 (C.A.A.F. 2001), so this rule was changed to ensure that the government would prevail if the Wiesen fact pattern were to repeat itself."

No; I'm making that up. Here's what the change's drafters' analysis actually says:

2005 Amendment: This rule change is intended to conform military practice to federal practice and limit appellate litigation when the challenged panel member could have been peremptorily challenged or actually did not participate in the trial due to a peremptory challenge by either party. This amendment is consistent with the President's lawful authority to promulgate a rule that would result in placing before the accused the hard choice faced by defendants in federal district courts - to let the challenged juror sit on the case and challenge the ruling on appeal or to use a peremptory challenge to remove the juror and ensure an impartial jury. See United States v. Miles, 58 M.J. 192 (C.A.A.F. 2003); United States v. Wiesen, 56 M.J. 172 (C.A.A.F. 2001), petition for reconsideration denied, 57 M.J. 48 (C.A.A.F. 2002); United States v. Armstrong, 54 M.J. 51 (C.A.A.F. 2000).

Hhhhmmm -- actually my little joke wasn't so far off the mark.

Note how ridiculous that drafters' analysis truly is. The rule is changed to conform with federal practice? Then I guess they had better change the rule to give the accused 10 peremptory challenges in non-capital GCMs and 20 in capital cases. See Fed. R. Crim. P. 24(b). Note that in a non-capital felony case in federal court, the defense gets 10 peremptory challenges but the prosecution gets only 6. Surely there is a GREATER need to give the accused more peremptories in the military system -- where the same official who decides to prosecute the accused also gets to pick the members panel -- than in federal court. So don't give me this "conform military practice to federal practice" hogwash. The rule deprives the accused of any relief for the erroneous deprivation of the defense's SOLE peremptory challenge. It is one of the ugliest MCM amendments I can think of. Has anyone seen any litigation challenging the new R.C.M. 912(f)(4)?

--Dwight Sullivan


Bill Cassara said...

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.

Anonymous said...

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?

Dwight Sullivan said...

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.

Now here's the hard part: what's the legal theory?

John O'Connor said...

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.

Marcus Fulton said...

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.

Dwight Sullivan said...

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.

rklant said...

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?

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.

rklant said...

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.