To be candid, as a civilian defense counsel and military justice lawyer I still am having a hard time wrapping my head around the logistics and more importantly the tactics behind the Military Justice Act of 2016’s Amendment that creates standard sized panels. Preliminarily, understand that practitioners do not anticipate this change to go into effect for another two years (so maybe by then this issue will become clearer, but I doubt it). The current practice is that in all but capital cases (think death penalty) a court-martial panel (the jury) has a guaranteed minimum number of panel members that is required in each case. That minimum number is known as having a “quorum.” The current state of the law is that in a general court-martial (usually equated to a felony level trial), a military accused is guaranteed at least five Officer members, and if he is an enlisted member, he can also request to be tried by at least one-third enlisted members. In a special court-martial, the panel size is a minimum of three Officer members with a parallel rule for enlisted members. Under the amendment a general court-martial will have a standard sized panel of eight members, and a special court-martial will have a standard sized panel of four panel members. Standard means that every court-marital panel will consist of this set number of members, no more and no less. Some commentators believe this is a positive change, but I am not convinced.
I am not certain all concerned have considered the dramatic impact such a seemingly minor change could have on those in the trenches of court-martial practice.
First, I’ll address the logistical issues. In civilian jury selection of criminal cases, the jury pool begins with a large number of people and then each side has numerous “just because” challenges known as “peremptory” challenges while they whittle down the large pool. Contrast multiple peremptory challenges in civilian practice with the ONE each side gets in military court-martial practice. Typically in military practice for a general court-martial, the convening authority will appoint between ten and twelve members to start with to hope that he is left with at least five, and in most circumstances a quorum is reached and trial proceeds without the need to appoint more members and to conduct voir dire again. Imagine in a system with a standard sized panel. If the convening authority starts with the same twelve and after challenges for cause (unlimited and go to a person’s actual or implied bias to sit fairly as a court-member), there are eleven members. If the defense uses its peremptory challenge so that the panel is now only ten members, now there are two superfluous members in excess of the eight standard-sized panel…
Logistically, what happens to these two “extra” members? Do they stay on as alternates? Military practice has never used alternate members. [Instead, Rule for Court-Martial 815 has a procedure to follow if after assembly the panel size falls below quorum to add members, though in cases where the credibility of a complainant is paramount, jurisprudence questions the validity of such procedure; see United States v. Salyer, 72 M.J. 415 (C.A.A.F. 2013).] How does one decide who is an alternate member? If the “extra” members do not remain as alternates, who decides who does not sit to remain as a voting member? Some have suggested that panel members at the outset are assigned secret numbers known only to the military judge so that following the exercise of and excusal pursuant to any challenges of cause and any exercise of peremptory challenges, the military judge would then reveal those with the highest or lowest or whatever the designation for the secret number and those with that designation would be excused because of their secret number. Using alternates or secret numbers may solve logistics, but what about the other implications?
Second, I’ll address the tactical considerations of amending court-martial practice to include standard size panels. What seems lost (or perhaps not lost) on those at the helm of these amendments is that not all panel members are created equally. Anyone that takes the position that all panel members selected by the convening authority are capable of fairly sitting on each and every court-martial in the same way is out of touch with reality. The decision that is made in selecting the lone peremptory challenge is one that is made often on the least amount of information but can be the most important. When a defense attorney selects her peremptory challenge, she is in current practice making the final touch on the panel that will decide the case. Under this new system, that all changes.
Part of the strategic decisions that are made is to carefully consider the dynamic of personality and rank of those remaining on the panel. Introduction of the random numbers and the potential for a person that would otherwise sit adds an unknown variable into that calculation and creates a great deal of unease by experienced practitioners. Not all panel members carry with them the same life experiences. What this new system is demanding of the defense is to blindly choose its peremptory challenge without knowing who is going to be taken off the panel anyway. One cannot underestimate the dynamics of who sits on the panel in combination with other panels and the dynamics of those influences of leadership within those on the panel. Often the choice of employing the peremptory challenge is to choose the least of the evils on the panel. When defense counsel are required to use their sole peremptory challenge with this possibility that same member or a different number will be arbitrarily knocked off the panel due to their assignment of a random number inserts a dynamic that undermines an experienced counsel’s ability to make strategic decisions.
DO NOT BE DISTRACTED BY THE SHINY OBJECT OF THREE-FOURTHS VOTE
I believe that those that are encouraged by the standard sized panels are findings themselves distracted by the shiny object being held just on the other side of it… the three-fourths (3/4) vote to convict. NOTE: Even when the vote was and is 2/3 to convict, if the panel size happened to be 8 members, the prosecution still needed 6 out of 8 members to convict. We, the defense bar, gain nothing by the 6/8 requirement for conviction. NOTHING. From my vantage point, standard size panels do not benefit the military accused that has obtained experienced counsel that is well versed in panel selection. For counsel who do not respect or understand the art of voir dire and panel selection, most likely will consider this new provision a draw. For those of us who study the craft of choosing the most advantageous panel and consider the above issues, I fear we will be frustrated by the new provision in that the strategic benefits we have crafted from years of experience are now equalized by the randomness of panel selection. It is one more way that the system attempts to skew toward conviction, or in this case, at least to skew any benefit away from the litigator with skill.