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AFCCA affirmed the military judge’s ruling in an unpublished opinion.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.

4 Responses to “CAAF signals interest in member challenge case”

  1. Phil Cave says:

    So there’s some hope for my case to be petitioned next week?

  2. Gene Fidell says:

    CAAFlog may be right as to what the Court’s order signals, but an equally good hypothesis is that the Court is concerned about misuse of the 10-day letter option.

  3. Cloudesley Shovell says:

    If AFCCA’s opinion is going to survive any scrutiny, it’s logic is going to have to survive a different set of facts:

    Lt Col D: Drug use is a victimless “crime.” I cannot imagine any drug use that would merit any punishment at all, even in a military context.

    MJ: Legally, you have to at least consider the full range of punishments.

    Lt Col D: OK, I’ll consider the full range.

    Or, to put a sharper point on it:
    Lt Col D: The gov’t should never be in the business of killing people, even heinous criminals convicted of heinous crimes.
    MJ: Legally, you have to at least consider the death penalty.
    Lt Col D: OK, I’ll consider the death penalty.

    Does anyone really think that AFCCA would have reached the same decision on these pro-defense facts? Fat chance. (Yes, I know, the gov’t cannot appeal on this. It’s a thought experiment, play along.)

    I will say, from my personal observations as a trial-level counsel in military and civilian courts, I’d take a military jury any day of the week over a civilian jury. But the selection process in the military could stand some improvement. The current system drives MJs and appellate courts to find ways to ratify the original panel rather than put the CA to the inconvenience of finding a few additional potential members.

  4. Anonymous says:

    Trial judges should never, ever worry about losing quorum. I would guess it takes about an hour to get a few new members – although they may not be in the proper uniform for the first day. That hour or two delay beats having to try the case again five years later. Rule No. 1 for trial judges should always be conscience over convenience.