Batson and members challenges

United States v. Thomas, Docket No. 24‑0147 (C.A.A.F. June 2025). Batson challenges are relatively rare in courts-martial, and that’s something your military defense counsel should know about. Thomas is a recent example of how such a challenge should be conducted and evaluated.

The history of Batson v. Kentucky, 476 U.S. 79 (1986), in courts-martial reflects the adaptation and development of equal protection principles within the military justice system, particularly as applied to peremptory challenges during member (jury) selection. Below is a structured and detailed history, tracing its introduction, doctrinal development, and modern application in military courts.

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I. 🧾 Batson v. Kentucky (1986): Civilian Origin

In Batson, the U.S. Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment prohibits prosecutors in state courts from using peremptory challenges to exclude jurors based solely on race. It replaced the earlier, more burdensome evidentiary standard from Swain v. Alabama, 380 U.S. 202 (1965), with a three-step burden-shifting framework:

1. The party challenging the strike must make a prima facie showing of racial discrimination.

2. The striking party must provide a race-neutral explanation.

3. The trial court decides whether there was purposeful discrimination.

Though arising in civilian state court, Batson was quickly extended to federal courts and adapted to the military context.

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II. ⚖️ Adoption in Courts-Martial

1. United States v. Moore, 28 M.J. 366 (C.M.A. 1989)

• The Court of Military Appeals (now CAAF) explicitly adopted Batson for courts-martial.

• Held that the Equal Protection principles of Batson apply to military panel (court-martial member) selection, even though the UCMJ does not require panels to be chosen in the same way as civilian juries.

• Importantly, the court reasoned that racially discriminatory peremptory challenges violate the military accused’s constitutional rights under the Fifth Amendment’s Due Process Clause.

“[T]he military justice system must reflect the Nation’s commitment to equal justice under law.” – Moore, 28 M.J. at 368.

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2. United States v. Greene, 36 M.J. 274 (C.M.A. 1993)

• Affirmed Batson’s applicability and clarified that a single peremptory challenge can support a prima facie case if it appears racially motivated.

• Emphasized that military judges must explicitly determine whether the proponent’s reason is a pretext for racial discrimination.

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III. 🔍 Refinements and Expansion

3. United States v. Tulloch, 47 M.J. 283 (C.A.A.F. 1997)

• Addressed defense peremptory challenges.

• Extended Batson to both the government and defense, holding that either party can violate equal protection by striking a member based on race.

• The Court emphasized Batson’s broader equal protection principles over its prosecutorial origins.

4. United States v. Witham, 47 M.J. 297 (C.A.A.F. 1997)

• Reiterated that a Batson challenge must be resolved on the record and that failure to conduct the full three-step analysis can constitute reversible error.

• CAAF reversed the conviction because the military judge accepted a race-neutral explanation without assessing its credibility or ruling on pretext.

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IV. 🏛️ Recent Applications and Clarifications

5. United States v. Riesbeck, 77 M.J. 154 (C.A.A.F. 2018)

• Although not a classic Batson case, it highlighted unlawful command influence (UCI) and unlawful exclusion of male members from an all-female panel—reiterating Batson’s core principle: panel composition must not be the product of discrimination.

6. United States v. Loving, 41 M.J. 213 (C.A.A.F. 1994)

• Death penalty case where CAAF scrutinized member selection procedures and emphasized the importance of eliminating racial bias, reinforcing Batson’s reach in capital courts-martial.

7. United States v. Thomas, 2025 CAAF (No. 24-0147, June 2025)

• Upheld the implied acceptance of a race-neutral rationale despite minimal explanation by the military judge.

• The CAAF reaffirmed the deference owed to trial-level determinations but noted that the judge should ideally make a specific finding of pretext (or not).

• Shows how Batson jurisprudence in courts-martial remains active and evolving.

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V. ⚖️ Procedural Considerations Unique to Courts-Martial

1. No “jury of peers” guarantee under the Sixth Amendment—court-martial members are appointed by the convening authority.

2. Voir dire and challenges are more limited than in civilian courts.

3. Batson principles are enforced through R.C.M. 912(f) and case law—not by statute.

4. A peremptory challenge in courts-martial may still be invalidated if found to violate equal protection or due process via Batson standards.

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VI. 🧠 Analysis & Legal Significance

• The military has fully integrated Batson into its jurisprudence under the Fifth Amendment’s due process protections.

• CAAF has emphasized that the appearance of fairness in member selection is vital to military justice credibility and discipline.

• Even in a system where convening authorities hand-pick members, racial (or gender-based) exclusion through peremptory challenges is strictly scrutinized.

• Military courts continue to balance the discretion afforded to trial judges with the need to protect against subtle and overt discrimination in member selection.

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VII. 📚 Key Cases in Chronological Order

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📌 Conclusion

Military courts have embraced Batson v. Kentucky as a cornerstone of non-discrimination in member selection, even within a fundamentally different selection process than civilian juries. Through Moore, Tulloch, Witham, and Thomas, the CAAF has built a robust line of authority that promotes both equal protection and the integrity of military justice.

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🧑‍⚖️ Case Summary – United States v. Thomas

• Issue: Whether the military judge’s denial of a peremptory-strike challenge under Batson v. Kentucky constituted an abuse of discretion.

• Facts: During jury selection at a general court-martial, the defense objected to the prosecution’s use of a peremptory strike against an African American panel member, Major SK.

• The military judge issued a one-sentence denial of the Batson challenge, without an explicit finding on pretext.

• The Army Court of Criminal Appeals (ACCA), in a split decision, upheld the military judge; the majority found the prosecutor’s race-neutral justification (MAJ SK’s purported inability to appreciate certain specifications) was plausible, while the dissent viewed it as masking purposeful racial bias Ballotpedia+2U.S. Courts – Armed Forces+2Findlaw+2.

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⚖️ CAAF’s Analysis & Holding

1. Standard of Review

   • Appellate review under United States v. Williams subjects a military judge’s Batson ruling to abuse-of-discretion review Findlaw.

2. Batson Framework

   • The Court reiterated the three-step process:
     a. Establish a prima facie case;
     b. Government offers race-neutral rationale;
     c. Court determines whether that rationale is pretextual U.S. Courts – Armed Forces+5U.S. Courts – Armed Forces+5Findlaw+5.

3. Affirmation Despite Sparse Reasoning

   • Although the military judge’s reasoning was “lacking,” the CAAF found implicit acceptance of the racial neutrality of the prosecutor’s rationale.

   • The judge’s decision to allow the strike suggested genuine belief in the legitimacy of the prosecutor’s explanation—justifying deference absent clear error U.S. Courts – Armed Forces.

4. Implied Rulings & Presumption of Regularity

   • Military judges are presumed to know and follow the law.

   • Even without explicit analysis, granting the strike implicitly meant the judge believed the proffered rationale was genuine—satisfying Batson’s third prong U.S. Courts – Armed Forces.

5. Final Holding

   • The CAAF concluded the military judge did not abuse discretion. The ACCA’s affirmance stood, and the Batson challenge was properly denied U.S. Courts – Armed Forces.

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🧭 Analytical Considerations

1. Evidentiary Sufficiency & Judge’s Role

• The case reflects the tension in Batson: once a race-neutral reason is articulated, the judge’s subjective assessment of credibility is critical.

• Even minimal explanation can suffice if the judge implicitly accepts the rationale—underscoring reliance on deference unless an error is clearly erroneous.

2. Limits of Appellate Scrutiny

• The CAAF granted less deference due to the terse ruling, yet still found no error. This demonstrates how appellate courts reconcile incomplete rulings with presumptions that judges follow the law.

• The ruling rebuffs calls for strict procedural rigor—military judges needn’t detail every step if the record suggests an informed, nonarbitrary decision.

3. Broader Military Justice Implications

• The decision prioritizes stability and finality in panel formation.

• While dissent raises concerns about subtle racial bias, the majority upholds the principle that credibility determinations during Batson challenges are best left to the trial court’s judgment.

4. Best Practices for Practitioners

• Defense counsel: should persist in Batson challenges—press for more than perfunctory explanations; request explicit findings.

• Prosecution and military judges: should compile a robust record with clear reasoning to guard against appellate second-guessing.

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✅ Conclusion

United States v. Thomas reaffirms the standards for addressing Batson challenges in military courts:

• A peremptory strike may be upheld even if the judge’s explanation is brief, provided the record reflects a genuine belief in a race-neutral rationale.

• Military judges enjoy considerable deference, though sparse reasoning may invite scrutiny.

• For litigants, the ruling underscores the importance of creating a thorough Batson record—particularly during voir dire and the explanation of strikes.