The attempt to seat a panel in United States v. Sinclair continues.

Military Times reports that there were three seated with three pending voir dire and potential challenge.  Military Times posits that the Army may seek members, say from the Air Force which is sort of co-located at Fort Bragg.  The piece also mentions that members must be senior to the accused.  (This looks to be the most current article, no telling what happened Friday.)

I wonder if R.C.M. 912(f)(1)(K) might be relevant to the discussion of members senior to the accused.  Could the Army in fact detail O-7’s to the next tranche of potential members without going outside the Army?  At what point can the Army say that we have exhausted the number of available senior general officers and we need to go with brigadiers, or even some senior colonels?

Charlie, you out there.  What happened with SGMA McKinney on that?

3 Responses to “Members, members, members”

  1. Bill C says:

    Judge Pohl struck the three he previously sat after sua sponte reconsidering the defense challenges.  They are down to zero.  I see retiree recalls and other service GO’s making up the panel.

  2. Charlie Gittins says:

    Well, SMA McKinney was junior by date of rank to a bunch of CSMs, but they had a long, long list of alternates that included retirees as I recall.  While we successfully challenged several CSMs, as did the Government, we never got close to the bottom of the list.  I will say that last year on my DP case, we went through over 60 members to seat 12.  That may be apples to oranges, but there was one member that we felt strongly should not sit — he was clearly a killer for sentencing.  He survived my first challenge for cause, but I kep challenging him for cause each time we went through a rotation of members and new challenges.  The judge finally granted the challenge for cause after the third time I raised it and put ever more information in the record supporting the challenge. 
    I don’t suppose there is any problem with having members from another service.  The rules don’t preclude it and in some cases they may be more forgiving or reasonable since they are not likely to be punished by their parent service for the decision they reach if it is unpopular.

  3. ContractLawyer says:

     
    I have heard the tale of a retired SGM working as a contractor in Saudi Arabia who was recalled to active duty for court-martial after he killed his wife.  The host nation did not prosecute because under their law the killing was justified or legal.  This was around the time of the first Gulf War and the retired SGM was working there as a contractor.  This was before MEJA.  At the court-martial, the MJ ruled that a CSM outranked a SGM.  This was necessary because it would be difficult to find E-9s with a better date of rank than this accused.  To resolve this with the McKinney case, it is just the MJ ruling out of convenience for the moment.  The issue with the recalled SGM is moot as he blamed it on the Sri Lankan house boy and was acquitted.  It was not my case, but I heard tales of it.