Government appeals excusal of a member who was questioned about the President’s comments regarding sexual assault… and loses
I just read this order of the AFCCA, denying a Government petition for extraordinary relief.
The Government appealed a military judge’s decision to excuse a member during voir dire after the member “was thoroughly questioned during voir dire concerning her knowledge of comments made by the President regarding sexual assault in the military, as well as her personal views on whether verbal consent was required as a prerequisite to consensual sexual interaction.” Slip op. at 1.
The CCA did not resolve this appeal on the issue of the President’s comments (noting in a footnote that the record wasn’t clear on the other members’ awareness of the President’s comments, and why only the one member was challenged for this). Instead, the CCA found that the military judge excused the member for “an implied bias against the accused, and not whether the President’s comments concerning sexual assault amounted to unlawful command influence.” Slip op. at 2. “This decision was warranted by the facts and was a proper exercise of the military judge’s judicial responsibility.” Id.
But, the member was excused on May 16, 2013. The AFCCA issued its opinion affirming the excusal on June 21, 2013. The case is being tried at Joint Base San Antonio, TX, where I think it safe to assume there are a large number of personnel eligible to replace this member in this case (that involves a junior enlisted (E-2) accused). So it’s hard to understand why the Government took this appeal, unless the Government is afraid of something.