CAAF will hear oral argument in the Air Force case of United States v. Dockery, No. 16-0296/AF (CAAFlog case page), on Tuesday, October 25, 2016, after the argument in Fetrow. The case presents two issues involving a successful prosecution challenge of a member due to concerns about race-based bias in favor of the accused:
I. Whether the military judge erred by granting, over defense objection, the Government’s challenge for cause against MSgt LW.
II. Whether the Air Force Court of Criminal Appeals erred by finding that the military judge did not err, and by concluding that even if the military judge did err there was no prejudice, contrary to this court’s precedent in United States v. Peters, 74 M.J. 31 (C.A.A.F. 2015), United States v. Woods, 74 M.J. 238 (C.A.A.F. 2015), United States v. Nash, 71 M.J. 83 (C.A.A.F. 2012), United States v. Clay, 64 M.J. 274 (C.A.A.F. 2007), and United States v. Dale, 42 M.J. 384 (C.A.A.F. 1995).
The appellant, Master Sergeant (E-7) Dockery, “is an African-American man who was accused of raping a white female one evening after she had been drinking heavily.” App. Br. at 3. He was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of sexual assault in violation of Article 120(b) (2012) and adultery in violation of Article 134. He was sentenced to confinement for one year and reduction to E-4.
Two service members of African-American heritage were detailed to the court-martial: SMSgt DC (male) and MSgt LW (female). SMSgt DC knew Dockery and was identified as a potential defense witness, and so he was excused. That left MSgt LW, who “identified herself as black and Hispanic.” Gov’t Br. at 2. During voir dire she was asked whether she would want herself on the court-martial panel if she were the accused, and she responded:
I would think yes, be fair, not from nothing, but for some reason an African American person already got dismissed so I would think – not that it wouldn’t be – oh god – I would say yes. You would want – you would want somebody like me to be fair for both parties, to judge. I think that I will be fair, listening to all the facts either way.
App. Br. at 3; Gov’t Br. at 3. The prosecution then challenged MSgt LW, asserting “that she harbored actual bias against the government.” App. Br. at 5.
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