The Courts of Criminal Appeals rarely invoke their factual sufficiency powers to reverse a conviction. Unlike legal sufficiency, which questions “whether, considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt,” United States v. Dobson, 63 M.J. 1, 21 (C.A.A.F.2006) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis added), factual sufficiency review involves the CCA’s independent conclusion about the evidence. It is a unique power granted by Article 66(c):

[A CCA] may affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved. In considering the record, it may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses.

The Air Force CCA recently exercised that unique power, in United States v. Wilkinson, No. 32218 (A.F. Ct. Crim. App. May 11, 2015) (link to slip op.):

It should go without saying that a court-martial is a most serious matter, and the requirement for proof beyond a reasonable doubt plays a vital role in the legitimacy of the military justice system. A “society that values the good name and freedom of every individual should not condemn a man for commission of a crime when there is reasonable doubt about his guilt.” In re Winshop, 397 U.S. 358, 363–64 (1970). In the military justice system, where servicemembers accused at court-martial are denied some rights provided to other citizens,2 our unique factfinding authority is a vital safeguard designed to ensure that every conviction is supported by proof beyond a reasonable doubt. This authority “provide[s] a source of structural integrity to ensure the protection of service members’ rights within a system of military discipline and justice where commanders themselves retain awesome and plenary authority.” United States v. Jenkins, 60 M.J. 27, 29 (C.A.A.F. 2004). Most cases reviewed by this court are deemed factually sufficient. However, in this instance, we simply are not personally convinced that the appellant is guilty of the charged offenses.

Slip op. at 3.

34 Responses to “The Air Force CCA finds child sexual abuse convictions factually insufficient”

  1. Kangaroo says:

    never heard of In re “Winshop.”

  2. Monday morning QB says:

    Judge Webber has written two recent opinions throwing out sex assault convictions.  This from last September.
    It’s also not the most in-depth factual sufficiency analysis, and in both cases the court appears to focus on the victims’ perceived failures in resistance or in making known their respective lack of consent loud enough.  Such short shrift borders on placing too much weight on old stereotypes that have been the subject of much review in the present climate and that perpetuate the commanding narrative about our system.  It would be nice to have a better and more detailed analysis of why – after having made allowances for not having been present in the courtroom – the evidence was so anemic.
    With respect to the Winshop case, I have not heard of that either or seen it used as part of the factual sufficiency standard.  The Govt cannot certify a case and argue factual sufficiency at CAAF, but it would be interesting if the Govt were to certify these cases – or other cases like them from the AF court in the future – and argue that the AF court used an erroneous standard to conduct factual sufficiency review.  

  3. Yoda says:

    Certify this case to CAAF and allege legal error the Government most certainly will.

  4. Kangaroo says:

    never heard of it, because it’s not a case.

  5. stewie says:

    Are we really getting indignant over a typo? Of a famous case that we all know has an i instead of o in it, said letters being right next to each other on the QWERTY keyboard? (I’m assuming the DVORAK keyboard was not used to type up this opinion).
    As to the opinion, I will admit/agree, that the opinion is so sparse on specifics that I cannot tell exactly why this case was overturned. Was the evidence submitted simply not enough (even if you believe the victim)? Or is the victim so not credible that any evidence she gave should not be considered?  The panel acquitted on the kiss, so that suggests they weren’t simply going with whatever she said. It may be obvious to the parties (and might be to us if we had access to the briefs) but I’d like a little more meat in the opinion on how the court reached its conclusion.

  6. Monday morning QB says:

    I find it a bit ironic that the court cites United States v. Jenkins, 60 M.J. 27, 29 (C.A.A.F. 2004), in which CAAF stated, “We cannot determine that Appellant received the “awesome, plenary, and de novo” review to which he was entitled by law…”  Jenkins was a case in which the NMCCA judge who wrote the CCA opinion had “replicated substantial portions” of the government’s brief before NMCCA.  Even though the CCA actually gave Jenkins relief rom his sentence, CAAF said they just couldn’t tell if Jenkins got everything he was entitled to and sent the case back for a new Art. 66 review from a different panel.   I can’t tell from reading this opinion why the court found it factually insufficient.

  7. RKincaid3 (RK3PO) says:

    Wow.  Love it.  Given the absurdity that is the modern Art 120 and the mess that are the charging decisions that are now percolating through the system following convictions that shouldn’t have happened (and wouldn’t have happened in a system requiring unanimity of 12 vice 2/3 of 3 or 5–depending upon forum), I hope to see MUCH more of this injection of objective justice (a concern for the integrity of the judicial process without regard to the subjective satisfaction/dissatisfaction that some might have with the results) despite tremendous political pressure exerted upon the MJ system by the nation’s civilian/political leaders.

  8. RKincaid3 (RK3PO) says:

    Wow…long sentence.  Sorry folks.

  9. Monday morning QB says:

    That’s right RK3PO; let’s have more JV opinions that continue to fan the flames of the narrative that our system is a JV system. This little cliff note does just that.  

  10. Advocaat says:

    It makes you wonder how AFCCA managed to write the background portion of the opinion with such a dearth of facts.  FN1 is also a mystery regarding what uncharged misconduct the govt introduced, but at least the court mentioned it in tiny font to minimize it even further.  So sloppy drunk Airmen with no memory of events can be sufficient to secure a 120 conviction while creepy uncle dude gets to walk (or swim)?  You can bet POD will be asking for the ROT and passing it along, so AFCCA had better hope it is on not just solid ground, but unshakeable bedrock.

  11. Cypher says:

    Even if in a summary fashion, couldn’t the court have at least mentioned the reason that it found the evidence insufficient?  (credibility of the victim? huge evidence of a motive to lie?  the accused’s good military character?  anything!). 
    The opinion did specifically point out that, “[t]he government did not call other family members who were allegedly present during the charged actions.”  I wonder if that factored into the court’s holding?  Was this additional evidence needed to satisfy the beyond reasonable doubt standard?  Who knows?  But, it would be more than a little interesting to know how the court came to its holding. 
    On the other hand, with no rational for its decision I guess it makes it hard to criticize the court’s reasoning.
    For those who think Congress should do away with the CCA’s factual sufficiency review power this case will probably be Exhibit #1.
    RKincaid3 (RK3PO), 
    In your comment you used the word “objective,” but I’m not sure the word “objective” means what you think it means…..  


  12. RY says:

    I think the CCA was intentionally vague.  SJAs, convening authorities, and judges all seem to know well that the less they say about controversial decisions the better in the long-run.  Whereas SJAs and CAs could be compelled by Congress to provide rationales, it is a more difficult task to require courts to do so in the absence of judicial precedent.  While JAJG might like to certify the case to argue the CCA applied an improper standard, the last such case was summarily affirmed by CAAF (U.S. v. Soto). 
    CAAF has been asked in the past to weigh in on how much a CCA should write about it’s deliberative process or even administrative processes; I remember oral argument on post-trial speedy trial issues with AFCCA taking unreasonably long to resolve an Article 62…I think it was US v. Danylo.  CAAF seemed entirely uninterested in requiring CCAs to explain.  To be sure, while I would love to understand better the CCA’s decision, I don’t blame them for being vague.  Judges and juries do not have to explain their decisions.  Case law does not require CCAs to do so either in factual insufficiency cases.  Whether that prompts Congressional intervention, that’s a different point and interesting question.  
    On the Congressional intervention point — The fact that factual insufficiency reversals are rare could be used by Congress as proof it is an unnecessary authorization; they did the same sort of analysis with Article 60, finding that the rarity of set-asides in clemency demonstrated the authorization was not necessary.  Interestingly, this case involves child sexual abuse…Congress thus far has only been on fire about adult sexual abuse.  It will be interesting to see if the parties that have been so outspoken on SA cases would venture into the child realm they have almost entirely avoided over the last few years.  Without more details about the case, it is difficult to know if this is a good case for them to ride for changing factual insufficiency. 

  13. RKincaid3 (RK3PO) says:

    MMQB: You couldn’t be more incorrect on why the UCMJ is considered a JV system.  It is not a JV system because the due process that are is due to every American by birthright is only occasionally delivered. The UCMJ is a JV system because it has so many JV procedures hailing from the arcana of unjust, old England and its royally oft-exercised privilege to criminalize the populace virtually at will.  In our system, that privilege exists in the form of one individual holding the power to not only prosecute (the commander, who will be called “the prosecutor” or “prosecuting official” in this post) at will unchecked by substantive citizen safeguards (a grand jury) while also having the power to determine what charges will be prosecuted (despite their complete unsuitability–due to education, training and experience–to the task) while also deciding who then sit in judgment of the accused as panel members. Keep in mind also that those panel members are not only hand-picked by the same official who both decides to prosecute and decides the charges, but are also successful in their careers and by definition their judgment reflects the necessary “judicial temperament” and wherewithall to not rock the commander’s boat.  And, BTW, those same panel members are also in nearly all cases within the rating chain or otherwise subject to that prosecutor’s influence. Add to that fact that every official in this process who is a commissioned officer needs both the POTUS’s nomination for promotion, but also needs Senate confirmation–and so political apparent UCI is rampant–and in most cases it is actual but the JV system bends over backward to negate its appearance despite the damage to confidence in the system.
    And so, self-preservation is inserted into the system just by its design. Add further that there is no unanimity requirement of 12 members, but only 2/3 of either 3 or 5 (depending upon forum) and that at most only 1/3 enlisted are allowed to be seated effectively guaranteeing that enlisted personnel can never effectively veto with an acquittal the prosecuting officer’s decisions to prosecute and the charges to be prosecuted. And of course, this is followed by an impossibly unrealistic post-trial clemency process where a convict can submit 1105/1106 matters to the prosecuting officer requesting, effectively, that they undo the prosecution—fat chance.  And, when any such relief is thereby granted, it is deminimis and largely inadequate given the life-long punitive effects of the conviction itself which is 99% guaranteed to not be overturned by the same officer who prosecuted the case—a conviction that would in most cases have not happened if a unanimous conviction by 12 randomly selected persons from all walks of life had been hearing the case.
    No, the practice of revamping unjust processes begins with precisely this kind of self-policing by those within the system who are also outside the military/political chain (read: independent judges not beholden to any outside influences—at least as far as appearances go) sufficient to inject some independent thought and critique of government’s (UCMJs) virtually unlimited ability to criminalize the population.
    Cypher: Thanks. I love that movie. But, just to be clear, I used the word “objective” in the sense that the process can be, from the outside, observed as a fair and reasonable process, unlike the Salem Witch Trial atmosphere currently surrounding the military’s war on the mythical, so-called “rape culture.” I did not use it as in the ‘”objective” is to take that hill” or in this case “secure a conviction.” The latter “objective” is in fact the forbidden and unjust “subjective” view of justice that has driven the political UCI down the throats of America’s armed forces via the military chains of command in the mess that has become Art 120.

  14. Tami a/k/a Princess Leia says:

    AFCCA, are you kidding me?  At least explain the rationale for reversing the convictions, so as to justify your decision!  First there was Wilkerson, now Wilkinson.  Sheesh!  Nothing like inviting more undesired scrutiny and criticism, and undesired changes in the UCMJ that screw up our system by those in Congress who do not want to be educated about our system.
    I would actually support TJAG certification on this one, asking CAAF to determine whether AFCCA applied its Article 66 powers correctly in determining factual insufficiency.  See United States v. Leak, 61 M.J. 234 (CAAF 2005).  AFCCA’s opinion suggests that they tossed the conviction because giving a “purple nurple” doesn’t seem to be that big of a deal, as opposed to being factually insufficient.  Yes, courts-martial ARE serious business, but so are appeals, and appellate courts don’t get to toss a conviction because they think it should have been handled with NJP.  Certainly they could have exercised their Article 66 powers to reduce the sentence, or maybe even an LIO of assault consummated by a battery, but this?

  15. rob klant says:

    I disagree.  Given the standard for “factual insufficiency”, it’s essentially the same as a finding of “not guilty.”   Wouldn’t demanding an explanation of the court’s rationale be a violation of its privilege under MRE 509?

  16. Tami a/k/a Princess Leia says:

    Rob Klant.  CAAF said in Leak that reversal of conviction on appeal is not equivalent of a finding of not guilty.  AFCCA’s decision is reviewable by CAAF, should TJAG certify the issue.  And this time there is precedent to do so.  Requiring AFCCA to explain why it thought the evidence was factually insufficient doesn’t invade deliberative process privilege.  Was there no evidence of his intent? Was the victim not credible?  Were other witnesses not credible?  Without such an explanation, it can’t be determined that AFCCA exercised it’s authority IAW Article 66.
    And keep in mind tbe lack of explanation for reversing Wilkerson’s conviction aggravated the situation, and led to a requirement to explain such an action, in cases that qualify for that action.  AFCCA didn’t do any favors for any of us by not explaining its decision.

  17. rob klant says:

    Understood, but my point isn’t  directed to the effect when a CCA uses an incorrect legal standard in conducting its “factual sufficiency” review.”
    it’s directed to the.demand for a rationale when a CCA declares it is not “personally convinced” of an appellant’s guilt.
    A rationale may provide a “favor” to one party or another, or to the interests of justice generally, but I don’t think it can be required as a matter of existing law.

  18. Cossio says:

    So I read the opinion and this was the actions that lead to court-martial:
    (1) A “purple-nurple”
    (2) Touching of clothed buttocks while on couch
    (3) A kiss
    All between family members.
    No, I think the AFCCA gave this it’s proper attention.

  19. No Jury, No Deference? says:

    AFCCA made it’s rationale clear.  Specifically, footnote 2 when read in concert with the paragraph it is modifying shows:
    1) The AFCCA judges were not personally convinced beyond a reasonable doubt of the Appellant’s guilt; and
    2) The fact that the court-martial panel was apparently well enough convinced is irrelevant to AFCCA on factual sufficiency review because a court-martial panel is – a) not a jury; b) there are qualitative differences between courts-martial and civilian criminal proceedings; and c) the court-martial panel’s fact finding role does not stand alone – i.e., it is “not yet an independent instrument of justice but remains to a significant degree a specialized part of the overall mechanism by which military discipline is preserved.”
    In other words, a court-martial panel verdict is not equal to a civilian jury verdict; it is not as reliable and therefore is not entitled to the same amount of appellate deference; and that’s exactly why Congress gave the CCA’s the power to do their own factual sufficiency review. 
    Some may may wish things were different.  But, if CCA fact finding power were to be constricted, then the balance Congress has struck between government convenience (smaller panels are easier to assemble) and the citizen’s right to a reliable verdict (traditionally guaranteed by a representative sample of 12 members who are required to be unanimous to convict) might be knocked severely off-kilter.  The power of convening authorities to reverse an erroneous finding (which is much more likely with a small non-unanimous panel) has already been largely eviscerated.  One might wonder if the CCA’s discretion to overturn the verdict of such a small nonunanimous court-martial panel might be the only thing remaining that keeps the military justice system Constitutional overall.

  20. Andrea M Hall says:

    I defended TSgt Wilkinson. He should not have been convicted. After my closing argument everyone who observed the trial thought the acquittal would come within 30 minutes. Instead the members deliberated for about 8 hours if I recall correctly, asked for reconsideration, then found him guilty. In opening the Government promised an eye witness. That person did not exist. The alleged victim had multiple different version of events that were grossly different, not just minor inconsistencies, and the story grew each time she told it. There should have been 3 eye witnesses to her first allegation, but there wasn’t. There should have been at least 10 eyewitnesses to her second allegation, but they didn’t exist either. She admitted under oath that she lied in her 1168 and on the stand. In feedback we were told by some members that “there just wasn’t enough evidence.”
    End rant. AFCCA got it right.

  21. stewie says:

    I don’t anyone is challenging, at this point, whether they got it right because the opinion leaves it difficult to establish why they got it right, or their reasoning other than in very vague terms.

  22. Monday morning QB says:

    RK3PO. Nice try, but nothing you mention has anyone’s attention right now. 

  23. Tami (a/k/a Princess Leia) says:

    Thank you!  That is my point exactly!  AFCCA could very well have reached the right result, the problem is that the opinion offers no insight into why.  That is the problem, and I think CAAF could very well reverse AFCCA’s decision on that basis and send the case back to AFCCA for reconsideration.  And AFCCA could very well reach the same result, with a more in-depth opinion.  But if that happens, the time and money spent on that could have been avoided with an in-depth opinion like in Soto.  AND I wouldn’t be surprised if Wilkinson got Congress’ attention, if it does, it could lead to more changes in the UCMJ, specifically changing Article 66 to limit appellate court’s authority to review a case for factual sufficiency.
    No Jury, I’m not quite following your argument about the “unreliability” of a panel verdict.  How is it “unreliable” as compared to a civilian jury verdict? Do you think the panel should have considered that this was a “stupid” case to prosecute because the misconduct was so minor that it wasn’t worthy of prosecution, like Cossio suggests?  That is not a proper consideration for findings, and it’s not proper for AFCCA to consider that either.

  24. RKincaid3 (RK3PO) says:

    MMQB:  You say those issues don’t have “anyone[‘s]” attention, but surprise–I got your attention.  And a response.  Not much of one because it is hard to dispute how JV (how bad) that several paragraph description makes Military Justice look.  It is the system in a nutshell and is why it is NOT a true “justice system” (only “rough” justice designed primarily for discipline).  Indeed, see No Jury, No Deference’s nice explanation of why it is NOT a justice system.
    Anyway, you seem NEW to this blog (I have only recently seen your comments appearing), but FYI, those topics have been discussed endlessly, on this blog and at other important places–like the SECDEFs special committee on the UCMJ–FOR YEARS–and not just be me.  Of all those issues, Art 25 panel selection criteria is probably THE most criticized by many more than “anyone.”  Each one of those issues alone has caused endless commentary and criticism by those much smarter and than I, and in the Art 120 context, each of those, when combined, have brought these issues to the forefront on numerous occasion.
    And those issues will continue to be debated and discussed until they are changed.  The mess that is Art 120 and the Special Vengeance Counsel (SVC) program have only added more scrutiny to these issues and if ever there was a chance to fix the UCMJ, now is the time.
    But it will take LEADERSHIP to fix it–and far too many politicians (both within and without the military) lack any significant, substantive leadership ability and instead manage (not lead) toxically by fear, intimidated and enforced conformity and group think.

  25. RKincaid3 (RK3PO) says:

    As for what some think of the mess that the hysterical moral panic surrounding sex assault, did anyone else see this alleged female airman’s letter to a SARC?
    Sounds an awful lot like what I wrote about (in three parts last) year comparing the ARt 120 hysteria and draconian responses to the Red Scare and McArthyism in the modern military context, here.

  26. No Jury, No Deference? says:

    No Jury, I’m not quite following your argument about the “unreliability” of a panel verdict.  How is it “unreliable” as compared to a civilian jury verdict? Do you think the panel should have considered that this was a “stupid” case to prosecute because the misconduct was so minor that it wasn’t worthy of prosecution, like Cossio suggests?  That is not a proper consideration for findings, and it’s not proper for AFCCA to consider that either.

    A jury renders a more reliable verdict because being comprised of a representative sample of the community makes any group better at better at ensuring that diverse viewpoints are considered during deliberations.  Requiring a large number of members to be involved in those deliberations makes theose deliberations more robust.  More people in the group also means more  people to remember salient facts and judicial instructions.  Requiring that large group of diverse people to reach a unanimous decision forces them to consider all dissent, seriously.  These things force juries to engage in more meaningful deliberations than court-martial panels are required to endure, and that is what makes jury verdicts more reliable than their military cousins.

  27. stewie says:

    But most juries are NOT a representative sample of the community. It’s whomever was randomly selected who didn’t have a job important enough, or other ability to get out of, jury duty.  Juries get things wrong all of the time. Military panels often have more experience and education than civilian juries.  They aren’t perfect either, but I see little evidence for the idea that juries are clearly better than panels. Juries are over-glamorized by some around these parts.

  28. Tami a/k/a Princess Leia says:

    No Jury,
    I couldn’t disagree more with your theory that civilian juries are somehow more reliable than military panels.  There are all kinds of examples where civilian juries are unreliable:  OJ Simpson, George Zimmerman, Casey Anthony, Kerry Kennedy, Andrea Yates to name a few.  In the Drew Peterson case, I believe, a juror actually asked what “unanimous” meant.  Civilian juries are no more a defendant’s “peers” than a military accused.  I was a SAUSA early in my career, my experience with civilian juries was that some jurors allowed their emotions to take over, feeling sorry for a defendant, which then led to hung juries.  Hung juries don’t serve justice.  This is why I am not a fan of unanimous verdicts, unless it’s a death penalty case.  Then you have civilian jurors who are all too eager to talk to the media afterwards to justify their decisions.
    My experience with panel members is that they pay attention, take notes (especially during instructions), and take their jobs seriously.  I have had panel members deliberate many long hours until early morning hours to reach a verdict.  They ask questions, which for the most part, are intelligent.  Most civilian juries don’t get to ask questions.  While there are cases where clearly a panel member shouldn’t have been included, there is the same problem with civilian juries.
    The defense attorney’s reference to “some members” didn’t think there was enough evidence to convict suggests the Wilkinson panel was a pretty decent size, at least 9.  Anything smaller and “some members” would have led to an acquittal.

  29. No Jury, No Deference? says:

    But most juries are NOT a representative sample of the community. It’s whomever was randomly selected who didn’t have a job important enough, or other ability to get out of, jury duty.  Juries get things wrong all of the time. Military panels often have more experience and education than civilian juries.  They aren’t perfect either, but I see little evidence for the idea that juries are clearly better than panels. Juries are over-glamorized by some around these parts.

    I’d be interested in seeing your empirical evidence that “most juries are NOT a representative sample of the community” or that they “get things wrong all of the time.”  The evidence I found seems to indicate the opposite on both fronts.  With respect to whether juries are representative: “In spite of declining numbers of jury trials, a larger and larger proportion of American citizens have firsthand experience with jury service, due to policies designed to increase the inclusiveness of the jury pool and to make jury service more convenient and accessible for all citizens.”  With respect to the reliability of a 12 member jury vs. a 6 member jury, see Ballew v. Georgia, 435 U.S. 223, 234-36 (1978), which gives a summary of the available empirical evidence and concludes “the data suggest that the verdicts of jury deliberation in criminal cases will vary as juries become smaller, and that the variance amounts to an imbalance to the detriment of one side, the defense. Ballew v. Georgia, 435 U.S. at 236.  So, I’m interested in seeing what evidence informs your, thus far unsupported, opinions.  Do you have even anecdotes?
    I’m also a bit surprised to see someone disparage the verdicts rendered by common folks who, as you said “didn’t have a job important enough, or other ability to get out of, jury duty.”  Such elitism is contrary to American traditions of justice.  It has always been “plain people” who we have trusted to “manfully [stand] up in defense of liberty against the importunities of judges and despite prevailing hysteria and prejudices.” United States ex rel. Toth v. Quarles, 350 U.S. 11, 18-19 (1955).  We’ve never, as a People, been comfortable with entrusting the defense of liberty to “specialists in any single field, including specialists in the military field.”  Id.  It’s clear that the law doesn’t traditionally share your apparent distrust of your fellow Americans without “important” jobs.  We’ve typically seen those common folk as being particularly imbued with common sense, much more so than supposed specialized or “experienced” groups of people.
    Aside from all of that, the jury serves an existential purpose.  We are supposed to be a government of the people and by the people.  Yet, in the disciplining of our soldiers, sailors, marines, airmen, and coasties, the people are completely absent.  Whether it is reality or not, it appears that the guilt or innocence of military citizens accused of criminal activity is determined by panels comprised entirely of “company” men and women.  The lack of any democratic control over whether a citizen should be denied liberty should be concerning in any free society.

  30. stewie says:

    Sure, of course your link doesn’t do that. The fact that more Americans have first hand experience with jury service does not equate to “a representative sample of the community.” 
    But as for my links: (for a discussion of all of the people left off jury pools because of the selection process at each step…click through the links).

    A quote:
    “There had been anecdotal concerns that because minorities may be less likely to be registered to vote and less likely to be registered to drive, the source lists may not effectively achieve a representative master list. In December of 2008, the Minority Justice Committee (hereinafter “Committee”) released a study that confirmed these perceptions. Based on an examination of nearly 70,000 juror qualification forms from eight of Nebraska’s most diverse counties, data indicated that racial and ethnic minorities were significantly underrepresented in the initial and eligible pools of jurors.”
    Now legislative changes in Nebraska addressed some of the issues, but not all of them, and these issues are widespread throughout this country, and they are the very issues I talked about.
    As for “anecdotal” I believe Tami covered that quite well. There is also logic and common sense.  We know how and why people get out of jury duty, we know who they are.  The fact that there are a myriad number of ways to get out jury duty right there tells you something.  We know that the rich can afford panel experts and their juries look different from the poor and middle class who get whatever jury their attorney (of varying degrees of skill) can put together.  We know that in many places there are racial, socioeconomic, gender, even political vagaries to who ends up sitting on a panel.  The accused could be a poor AA and have allegedly committed the crime in a majority white part of the state.  The panel seated is highly unlikely to be one of his “peers.”
    There is nothing “elitist” about recognizing who gets left on a jury and who is able to avoid jury service.  Quite the opposite in fact. There is nothing elitist about valuing intelligence and education when dealing with complicated issues, and sometimes “the plain people” aren’t up to the challenge.  Your mythologizing of “plain people” as “imbued” with “common sense” is heart-warming, but not based on anything real.  To paraphrase what someone once said, “common sense” is often neither.
    I didn’t say anything about the reliability of smaller pools vs. larger. I have no problem with the idea of getting rid of the smaller panels we have and going with a larger number. But since you are citing the Supreme Court, we know from that same court that as few as 6 people can be good enough for some types of cases, and we know that non-unanimous (at least to 10/12 or a similar percentage) is also good enough (but 8/12 isn’t).  So if you want to tweak our current system to make it closer to unanimous or insure at least 6 or more panel members, I’m on board.  But your glorification and hazy reverence for random juries, yeah no. 

  31. stewie says:

    Not to spam but here’s another link:
    This link talks about a nationwide examination of how representative our jury pools are with a plethora of links to articles, etc on the issue.  Suffice to say I see nothing that suggests any national unanimity that our juries are “representative.”
    “The absence of a representative panel could be the result of many circumstances, some of which,may not be affected by jury pool management. For example, many minority members of the community may not be qualified for jury service because they may not be US citizens, may not be able to speak English, or may have a felony conviction. Other circumstances, may be affected by jury pool management, such as: refusal to answer summonses; requests to be excused because of employment, childcare, or transportation problems; undeliverable summonses and the methods used for composing the jury pool”

  32. RKincaid3 (RK3PO) says:

    The phrase “jury of one’s peers” in America has never ever meant similar career holders, similar economic status, similar race.  Remember Leona Helmsely, whose lawyers literally argued during her tax evasion trial that only persons whose net worth was equal or higher to hers were her peers?  REJECTED.  Remember all those who argued that only infantry personnel are the peers of infantry troops on trial for war crimes?  REJECTED.
    Historically, the phrase “jury of one’s peers” meant just that–peers were class based–lords were judged by lords, nobles by nobles, peasants by peasants, etc..  But in America, the power of government to prosecute and criminalize a citizen was subject to (limited by) the judgment of other citizens–it has been and is a CHECK on the power of government to criminalize the average citizen–a power oft utilized to suppress opposition.  So all the discussion about who is or is not “one’s peers” that I see above is terrifyingly ignorant of the primary issue in the American tradition.  Especially given that most of the criticism of the UCMJ focuses on the inherent weakness presented by unified control of the criminalization process–from start to finish–by one person who both lacks the training and skills and whose focus (war fighting) is completely disqualifying of their ability to make complicated and objective decisions well outside their lane of expertise in an area that is highly developed and specialized.  As I have said before–JAGs have no business making decisions directing infantry mass and maneuver or calculating artillery firing solutions on the military battlefield than does a commander making legal decision on the forensic battlefield.  And commanders do NOT need to impose federal convictions to maintain good order and discipline.
    Indeed, the fact that a commander–wielding all the prosecutorial power–is served by advisers whose advice the commander is free to ignore (since the advice is only a “recommendation”–and apparently not the result of years of specialized education, training and experience in an extremely arcane and complicated profession–the law), completes the appropriateness of comparing the UCMJs operational model to the royal abuse inflicted over centuries by the kings of England on their citizens (subjects).
    This principle of peerage review goes back to early western civilization, but for purposes of Anglo-American justice, it starts with the Magna Carta, section 39 (1215):

    “Nullus liber homo capiatur, vel imprisonetur, aut disseisiatur, ut utlagetur, aut exuletur, aut aliquo modo destruatur, nec super eum ibimus, nec super eum mittemus, nisi per legale judicium parium suorum vel per legum terre.”  [“No free man shall be taken or imprisoned or disseised or outlawed or exiled, or in any way ruined, nor will we go or send against him, except by the lawful judgement of his peers or by the law of the land.”) (Latin text and translation in J.C. Holt, Magna Carta 326-27 (Cambridge U. Press, 1965)].

    So, the importance of this issue (jury decisions) has been discussed by judicial mental giants throughout Anglo-American legal history (from Lord Coke to Lord Blackstone to modern American jurists on the SCOTUS).  And it is much larger and more important than simply debating whether a commander can do this fairly.  He/She is human–so their failure in this regard is inevitable.  And even if a commander is a better, superior model of human being sans prejudice and emotion (a literal impossibility), the fact that the UCMJ operates entirely on the whim of one individual (from charging to panel selection to clemency to affirming the conviction)–it is and certainly APPEARS significantly unchecked by any significant outside influences (i.e., peers of the accused)–and thus, the results are automatically suspected.
    So, in my humble opinion, NJND is 100% spot-on.  Representative juries as vastly superior to panels.  Even when they get results we don’t like (as mentioned by Tami aka PL–their process is 100% more uncontrolled and thus serves as a check on the government’s power to criminalize its citizenry–an historically oft used tool of government oppression) than are the proceedings and verdicts of UCMJ panels.
    So, let’s revise the hell out of UCMJ Art 25, go with unanimous verdicts, randomly select them from the local post population and then I will feel better about the commander’s decision to prosecute–even if we can’t ever get a system that has professional prosecutors instead of commander’s acting well outside of their lane of expertise (and which, oh by the way, has created the entire field of over-complicated analysis of a totally avoidable problem called Unlawful Command Influence and which of late has been totally invaded by political influence from Congress and the President in the political war on the mythical monster known as Rape Culture).

  33. stewie says:

    RK3 I wasn’t the one who made the claim that a jury “renders a more reliable verdict because being comprised of a representative sample of the community makes any group better at better at ensuring that diverse viewpoints are considered during deliberations.”
    I was merely responding to that claim with where it was flawed.  You have a fine romantic ideal of what you think juries accomplish. But a romantic ideal isn’t reality.  No, we don’t have lords judging lords, but we don’t have representative samples either, certainly not to the level that comes anywhere close to achieving the guaranteed better results you seem to think come merely from the mere fact that you have a random jury versus a military panel.
    Uncontrolled isn’t true.  Juries are absolutely controlled.  Controlled by the process used to select them (which isn’t truly random), controlled by the ability of individual jury members to avoid service, or to get out of service, and the varying ability of the attorneys for each side (depending on skill, which often, but not always, depends on the financial status of the accused) to weed out still others. 
    To paraphrase Neo, it’s just another level of control.
    No one is suggesting that there are not dangers in the GCMCA selected panel process.  There absolutely are.  But the romantic random American will be better because they are random Americans…as if that means they bring the necessary intelligence, common sense, and lack of biases simply because of their existence, while an uplifting thought, isn’t, IMO, reality.

  34. RKincaid3 (RK3PO) says:

    Stewie: Fair enough.  Sorry for wrongly identifying you.  As for the other point–about the independence of juries and panels-we should be able to agree that between the two, the jury is much less controlled by anybody than is the panel–at least based upon appearances if not in factual practice, ala General Sinclair, General Franklin and Airman Wright, to name but a few glaring examples of tainted prosecutions (yes, I am referencing the political UCI problems in those cases–not actual panel problems).  
    But that is the point, is it not?  The system is tainted (or appears tainted) long before a panel is ever empanelled and when one finally is empanelled–their selection and actions just increase–and doesn’t mitigate–the tainted process.
    Realizing that perfection in any human endeavor is utterly impossible because of the human factor, we should be going for the best possible when the stakes are so high–such as criminalizing the populace (which in turn affects typical citizen franchise rights like voting and gun rights, etc., and SOR requirements–a life sentence of punishment if ever there was one).
    So, we should–as Americans–expect and demand better of our leaders (both military and civilian) and the system if only for our own sakes and that of our combat effectiveness.  Especially since combat effectiveness is directly related to morale–which is in many units low or non-existent since now the only people in the military are either sex assault victims or sex assault perps–or are in waiting to become one or the other or heaven forbid–both.