CAAF’s decision in United States v. Bagstad has a big effect on SSgt Bagstad — he gets to keep his BCD for marijuana use. But it has little wider effect — other than providing a roadmap for litigation of a Wiesen issue should one ever arise again.
In Bagstad, the special court-martial panel that was ultimately seated had three members–a company commander, his company gunny, and a first sergeant. The defense counsel had challenged the company commander for cause because he wrote the gunny’s fitrep. On appeal, the defense argued that the panel violated United States v. Wiesen, 56 M.J. 172 (C.A.A.F. 2001), since the company commander and the company gunny under his command was a sufficient bloc to produce a finding of guilty.
That issue wasn’t properly preserved, the majority ruled. At the time the causal challenge to the company commander was lodged, the panel still had four members, including the captain, and the Company Commander-Company Gunny axis wasn’t sufficiently large to control the outcome. It was only when the defense exercised its peremptory challenge against another gunny on the panel that the Wiesen issue arose. And, crucially, the defense “did not object to the final composition of the three-member panel on the basis that it violated Wiesen.”
Bagstad doesn’t tell us how the case would have come out had the defense lodged a Wiesen objection at that point. That question will have to be answered, if ever, in a future case.
Judge Baker, who wrote Wiesen, dissented. His dissent concluded: “I am certain that a junior enlisted Marine would think a panel composed like the one is this case was anything but fair.” Judge Erdmann (a former junior enlisted Marine) joined Judge Baker (a former Marine company XO) in the dissent.
Judge Erdmann wasn’t yet on CAAF when Wiesen was decided. Chief Judge Effron, who joined Judges Stucky and Ryan in the Bagstad majority, was part of the Wiesen majority. Chief Judge Effron’s term on the court is nearing its end — his current term expires on 30 September 2011. So unless President Obama nominates Chief Judge Effron for a second term, it seems unlikely that this issue will return to CAAF for resolution during Chief Judge Effron’s tenure.