Appears the Hennis capital court-martial members panel is down to 10 (half enlisted) after both sides exercised 1 peremptory challenge yesterday, see FayObserver coverage here. The court resumes today with six new potential members to interview, 3 officer and 3 enlisted.

9 Responses to “And Then There Were 10–Hennis Voir Dire Continues”

  1. John O'Connor says:

    So the TC blew quorum by exercising a peremptory that brought the panel from 12 to 11 members. The TC probably could assume the defense would blow quorum by exercisuing a peremprtory so it likely wouldn’t have saved quorum if the TC passed on taking a peremptory.

    Normally, I wouldn’t take a peremptory as a TC if it would blow quorum, though when you need a unanimous verdict that might call for a different approach.

  2. Jason Grover says:

    JO’C,
    In this case it looks like the government removed a member who said she was against the death penalty. I assume that the MJ found she could consider it and thus passes the Witt test. In that case, if the TC anticipates the defense breaking quorum in any event, it makes sense to me to perempt that member. According to the report the defense exercised their peremptory challenge on a member whom was not previously challenged. If true, is that because of R.C.M. 912(f)(4)? It is possible that the defense has lost a previous challenge but wanted to perserve that challenge for later review and thus did not exercise their peremptory challenge on that member. Of course, the press could be wrong in the reporting as well. I would love to watch it all play out.

  3. John O'Connor says:

    Yeah, I’m not at all criticizing the TC for taking the peremptory that blew quorum. My only real point is how it’s different in a capital case where you need unanimity. The MJ would have murdered me if I, as a TC, took a challenge that caused us to blow quorum (e.g., if I reduced a GCM panel to five and the DC then kicked someone to bring it to four).

  4. Jason Grover says:

    Likewise, I was once yelled at by the SJA when I busted quorum as a TC. We were down to 5 and there was a member left who had been on a panel that had acquitted in another case. I had no other good reason to challenge her, but I didn’t like her. The SJA was not pleased with my decision to cause delay and more work.

  5. Bill Herrick says:

    Jason,

    How many did the SJA start out with? I suspect 7 or 8. I understand the need to press on – but sometime the level of hostility that arises from a TC blowing quorom astounds me, especially when the initial venire is slight to begin with. After all, isn’t it really the TCs job to ensure the case has the best chance for success?

  6. Cheap Seats says:

    It is obviously a tough call on non-capital cases, but shouldn’t both TC and DC use the appropriate judgment to best serve their respective clients? If counsel believe that the member is not a person they want on the panel, they should get rid of them. If that means gathering more members – so be it (and yes, I’ve been an SJA). Good for the TC who are fighting to protect their case.

  7. Jason Grover says:

    Bill,
    I think we started out with 10, that was the normal practice for that CA then.

    I agree with both Bill and Cheap Seats, TCs, as well as DCs, should act as advocates and part of that is to intelligently use all the tools you have, including peremptory challenges.

  8. Anonymous says:

    A SJA who gets worked up over having to do his job? I’m shocked!

  9. Anon says:

    On the flip side of the busting quorum discussion, as a DC while I paid attention to the “numbers game” (i.e. best defense numbers in light of 2/3 requirement) that always gave way to getting folks off the panel that I felt strongly about.