Articles Posted in Members (Jury) Issues

Leaks from Members (or sometimes military judges) occasionally give rise to appellate litigation.

Here is an interesting piece on federal evidence review:

Motion for new trial on criminal extortion and bribery case denied, despite juror’s statement to newspaper after the verdict that because the defendants did not testify, the juror reasoned that "[if] they were innocent, they would have testified.’”; since members of the jury did not learn of the defendant’s failure to testify through improper channels, the evidence of their discussions was not admissible under FRE 606(b) as it was not an extrinsic influence, inUnited States v. Kelley, 461 F.3d 817 (6th Cir. Aug. 31, 2006) (Nos. 05-1361, 05-1435)

Federal Evidence Review references:

In conspiracy and arson trial, reversing and remanding when trial court failed "to make adequate inquiries regarding news stories" that appeared during deliberations and their impact on juror’s deliberations; the judge erroneously failed to explore "whether any juror heard any of the information" and its impact on the jury, in United States v. Waters, __ F.3d __ (9th Cir. Sept. 15, 2010) (No. 08-30222)

The Ninth Circuit recently considered the trial court’s responsibilities to make specific inquiry of jurors when "adverse publicity occurs during deliberations" of the jury. The case can help clear up confusion about the role of the trial court, particularly in light of FRE 606(b) limiting inquiry into a verdict.

SCOTUSBlog notes two new petitions with potential impact on a court-martial practice under the UCMJ.

Title: NIBCO, Inc. v. Rivera
Docket: 10-383
Issue(s): (1) Whether a court of appeals must conduct a comparative juror analysis when reviewing a claim under Batson v. Kentucky, even though the comparative analysis was neither raised before nor considered by the trial court below; and (2) whether a court of appeals that identifies a suspected Batson problem based on a comparative juror analysis never considered by the trial court can vitiate a trial without remanding to allow the trial court to consider the new arguments and evidence in the first instance.

Title: Dunn v. Louisiana
Docket: 10-386
Issue(s): Whether a court’s modification of the three-step Batson v. Kentucky analysis, requiring the defense to prove that its strikes were not motivated by race, while simultaneously requiring it to prove that the state’s strikes were motivated by race, violates the Sixth and Fourteenth Amendments.

The accused is charged with indecent assault on a complaining witness and rape on another complaining witness.

Member:  Sir I’m the unit victim advocate.  Individual voir dire continues blah, blah, blah.

Def:  The defense objects on implied bias and liberal grant mandate.

(Thanks to Volokh Conspiracy) we have Sanford v. United States, No. 08-5402 (D.C. Cir. 13 November 2009), in which the court held that a SPCM with less than six members is not unconstitutional.  The court notes that:

This court has recognized that the standard of review in non-custodial collateral attacks on court-martial proceedings is “tangled.” United States ex rel. New v. Rumsfeld, 448 F.3d 403,
406 (D.C. Cir. 2006) (“New II”).

Sanford had been arguing that the government had the burden to demonstrate reasons why there should not have been at least six members on his court-martial panel, in accordance with Ballew v. Georgia, 435 U.S. 223 (1978).  The district court dismissed Sanford’s case, and he appealed.  The circuit court ultimately concluded that the burden was on Sanford to show reasons why there was a constitutional violation and that because he’d not done so, dismissal was proper.  Thus, a special court-martial can still have less than six members.  It is uncertain if Sandford will appeal.

Barbara Rich Bushell, Identifying Leaders, 21(5) The Jury Expert, Sept. 2009.

When I initially read this piece I did not see any relevance to a military Members panel (the jury).  The military “foreperson” is preselected, and will be automatically selected after challenges – it’s the senior Member by rank and date of rank.   However, after a few more readings there do seem to be some potential ideas from the piece.  So lets moot a little.

1.  The senior member is not a leader in the traditional military sense and will defer to others in certain situations – maybe she’s the medical type.  You need to know who the alternate leader is, the one who is likely to take over in the deliberation room.  And having been there done that with a (non prior enlisted) O-3 senior member and a sergeant major on the panel, well . . . . .  you get the picture.

Here is a CNN piece on United States v. Smith.

Dog handler appeals conviction in Abu Ghraib case.

He’s already served the time, but lawyers Thursday argued to clear his name as onetime U.S. Army Sgt. Michael Smith appeals a conviction for the torture of detainees once held at the Abu Ghraib prison in Iraq.

NMCCA has an unpublished opinion on line in United States v. Thomas.  The case is interesting partly because it is an recitation of some facts vice news reported “facts.”

I find footnote 3 to the decision of some interest:

The Second Circuit has found that removal of any person who has previously served on a jury that ultimately acquitted an accused is an appropriate reason, regardless of race, for future challenge. United States v. Douglas, 525 F.3d 225 (2nd Cir. 2008).

Professor Colin Miller has a comment today on his blog about United States v. Matthews, 68 M.J. 29 (C.A.A.F 2009) He illustrates that Mil. R. Evid. 606 mirrors the federal rule but has the additional exception for “command influence” in the Members deliberation room.

Chain Of Command: Military Case Reveals Interesting Exception To Military Rule Of Evidence 606(b).
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