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)?