What, if anything, can you as military defense counsel do if you suspect some shenanigans during panel member deliberations?
Military Rule of Evidence 606 states the basic rule against questioning the panel members during or after the trial about what went on during deliberations.
Prohibited Testimony or Other Evidence. During an inquiry into the validity of a finding or sentence, a member of a court-martial may not testify about any statement made or incident that occurred during the deliberations of that court-martial; the effect of anything on that member’s or another member’s vote; or any member’s mental processes concerning the finding or sentence. The military judge may not receive a member’s affidavit or evidence of a member’s statement on these matters.
Remember that before dismissing the panel at the end of the trial the military judge gives them instruction. They reminded of the secrecy of their deliberations and that they are not to discuss them with anyone unless a military judge orders that. There are several exceptions to the ban on questioning members about their deliberations. There are several exceptions to the Rule.
A member may testify about whether:
(A) extraneous prejudicial information was improperly brought to the members’ attention. United States v. Schloff, is an example of this exception (and exception (B)). During deliberations, the two senior (O-6) members influenced the decision with comments like “politically, the United States Army could not afford to seem weak on sexual harassment and assault[,] or “based on the political climate, the Army could not seem weak or soft in dealing with sexual harassment or assault.” The Army Court of Criminal Appeals decided to remand the case for a new trial because of the improper influences on the panel deliberations–the client was acquitted at retrial.
(B) unlawful command influence or any other outside influence was improperly brought to bear on any member. See Schloff.
(C) a mistake was made in entering the finding or sentence on the finding or sentence forms. We see this exception in use from time to time when the military judge believes the findings are ambiguous.
In Pena-Rodriquez v. Colorado, ___ U.S. ___, 2016 U.S. LEXIS 2424 (2016) , the Supreme Court basically held that “Where a juror makes a clear statement indicating that he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee.” In passing judgment the court noted that 16 jurisdictions allowed the no-impeachment rule to be pierced when there was an issue based on racial stereotyping. The court did caution however about creating exceptions to the no-impeachment rule. On the race issue,
The unmistakable principle underlying these precedents is that discrimination on the basis of race, “odious in all aspects, is especially pernicious in the administration of justice.” Rose v. Mitchell, 443 U. S. 545, 555 (1979). The jury is to be “a criminal defendant’s fundamental ‘protection of life and liberty against race or color prejudice.’ ” McCleskey v. Kemp, 481 U. S. 279, 310 (1987) (quoting Strauder, supra, at 309). Permitting racial prejudice in the jury system damages “both the fact and the perception” of the jury’s role as “a vital check against the wrongful exercise of power by the State.” Powers v. Ohio, 499 U. S. 400, 411 (1991); cf. Aldridge v. United States, 283 U. S. 308, 315 (1931); Buck v. Davis, ante, at 22.
So as a military defense lawyer with a case at court-martial under the UCMJ, what can you do if the issue does not fit neatly into any of the exceptions and is not a racial stereotyping issue? Perhaps exception (A) might be the hole in the needle to thread. Yet, we have Missouri v. Gilbert, which says a jury verdict cannot be impeached when there is evidence the jurors held the accused’s silence against him.
The Gilbert court emphasized the limited exceptions in their state law making it only possible to have the testimony about juror misconduct that happened outside the jury room or testimony about jury misconduct that occurred during deliberations where a juror makes statements evincing ethnic or religious bias or prejudice during deliberations. The court observed that Gilbert was trying to create a new Missouri court-made exception for “improper consideration of a defendant’s failure to testify in reaching its verdict.” The Missouri court said it would not create this new exception.
In finding no error the court referenced Pena-Rodriguez v. Colorado, where the U.S. Supreme Court “warned that creating further exceptions to the general rule could create havoc: “[t]o attempt to rid the jury of every irregularity of this sort would be to expose it to unrelenting scrutiny. It is not at all clear … that the jury system would survive such efforts to perfect it.” Id. at 868 (internal citations and quotations omitted).
We do have some cases to review, for example,
- United States v. Robertson, 77 M.J. 518, 526 (A. F. Ct. Crim. App. 2017) aff’d in part rev’d in part on other grounds, 77 M.J. 365 (C.A.A.F. 2020) (the AFCCA found insufficient evidence to believe racial bias or animus influenced the trial members panel decision.
- United States v. Leal, __ M.J. ___ (C.G. Ct. Crim. App. May 3, 2021), petition pending CAAF. In Leal, the issue became whether to senior member, an O-6, had influenced the enlisted members to vote for guilt. The CGCCA found insufficient evidence to overturn the conviction because of the senior member’s alleged influence.
- United States v. Schloff, in which the two senior (O-6) members influenced the decision with comments like “politically, the United States Army could not afford to seem weak on sexual harassment and assault[,] or “based on the political climate, the Army could not seem weak or soft in dealing with sexual harassment or assault.” The Army Court of Criminal Appeals decided to remand the case for a new trial because of the improper influences on the panel deliberations–the client was acquitted at retrial.
One final note, in Iowa v. Spates, the court followed Pena-Rodriguez. In doing so the court said that appellate review had to apply an objective not subjective standard to any evidence.
[W]hether to receive juror testimony and whether to grant a new trial—should be based on objective circumstances, e.g., what was said; how and when it was said; what was said and done before and after; whether and how the statements relate to evidence in the case; whether and how the statements relate to the issues the jury will decide when reaching a verdict. Conversely, neither determination should depend on the jurors’ subjective evaluations of their own motives—or the motives of other jurors—in voting to convict.
It is challenging for a military defense lawyer to identify problems inside the jury box and even harder to make an appellate issue should there be some evidence of panel member misconduct. One way for the government to avoid the issue is to take special care during an argument not to raise the specter of a decision based on anything but the facts and the law. Seue, e.g., United States v. Garcia. Here the prosecution bilged the case for an accused who was found not guilty on retrial.
“This case involves numerous instances of improper argument during findings. Some were objected to and some were not. We discuss each instance separately and
collectively assess whether they resulted in prejudice to appellant.”
Obviously, objections are more necessary now than before. The appellate courts are becoming more strict on waiver of objections and more parsimonious with the plain error analysis. Courts-martial under the UCMJ are supposed to be fairly decided on the evidence and the law and not on Service policy or similar doctrine such as zero-tolerance.