CAAF holds screening potential members based on possible personal knowledge of the offenses or the accused violates Article 25
The accused in Gooch was a lieutenant colonel. This resulted in difficulties in the member selection process, since there was a limited number of potential members who were senior to the accused. The staff members responsible for presenting potential members to the convening authority were also concerned about the possibility that the officers in the members pool would have knowledge about the alleged offenses or personal relationships with the accused. The staff members decided to exclude from the list all of the officers in the same wing as the accused who were assigned to the wing before the accused was relieved of command or before he deployed. Additional potential members were excluded on non-availability grounds. Ten officers’ names were ultimately forwarded to the convening authority, who picked nine of them as members. The accused and one of the nine members were African American.
In Gooch, a three-judge majority held that screening the potential members based on how long they had been assigned to the wing violated Article 25, though the error was held to be harmless. Judge Baker wrote for the majority of himself, Chief Judge Effron, and Judge Erdmann.
The majority expressly endorsed consideration of potential members’ availability as a permissible screening criterion, as long as it isn’t used as a pretext to evade the Article 25 criteria.
The majority determined that there was no evidence that the screening in this case was designed to eliminate racial minorities from the pool of potential members, though in practice the screening eliminated three of four potential African American members. United States v. Gooch, __ M.J. ___, No. 10-0251/AF, slip op. at 13 (C.A.A.F. Feb. 9, 2011).
But the majority did find an Article 25 violation. The majority held that the NCOIC who proposed potential members for the CA’s consideration violated Article 25 by limiting the pool based on possible personal knowledge of the case and possible personal knowledge of the accused. After noting that these aren’t statutory member selection criteria, the majority observed that “R.C.M. 912 reflects the President’s intent that the appropriate mechanism for addressing potential bias or knowledge of the case and of the accused is through voir dire.” Id., slip op. at 15. The majority reasoned that the effect of the screening was to allow the government to “peremptorily challenge any officer [from the Appellant’s wing] who might know Appellant and have a favorable view of Appellant’s professional service.” Id., slip op. at 17. “[V]oir dire as provided for in Article 41, UCMJ, and regulated by the President under R.C.M. 912, is the codal method for identifying and screening members based on potential bias, not categorical exclusion.” Id.
The majority held: “[P]ossible personal knowledge of the case or the accused, based on contemporaneous service alone, is not a proper basis for screening potential members under Article 25, UCMJ.” Id. But the majority held that the government had carried its burden to show that the erroneous exclusion of potential members based on their date of arrival at the wing was harmless.
Judge Stucky, joined by Judge Ryan, concurred in the result but opined that there had been no Article 25 violation. After taking issue with a couple other aspects of the majority’s opinion, Judge Stucky argued that the majority’s holding is impractical. Convening authorities, Judge Stucky wrote, are “very busy people.” Detailing additional members after a quorum has been busted distracts them from their other important duties. “If, as the majority demands, the convening authority’s staff is prohibited from rejecting persons who could not or most likely would not survive the voir dire and challenge process, convening authorities will have to refer cases to larger court panels — taking more members away from their primary duty — or face the prospect of more interruptions, in both the trial and his schedule, to select additional court members.” Judge Stucky argued that given Lt Col Gooch’s previous position as the Mission Support Group commander, he was likely to be well-known to the senior officers who served in the same wing at the same time. Voir dire, he reasoned, may be the primary means to ensure a fair and impartial panel, but it isn’t the only means. Screening members by their date of arrival at the command, he concluded, isn’t prohibited by Article 25 or CAAF’s precedent.
The majority also rejected a highly fact-specific IAC claim on highly fact-specific grounds. Judge Stucky’s separate opinion didn’t address the IAC issue.