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.