Court-Martial Trial Practice

The Coast Guard has an interesting opinion in United States v. Sullivan, on a members panel stacking.

A military accused does not have the same “jury” right as a civilian accused, but he does have the right to a panel (jury) that is fair and impartial.  United States v. Roland, 50 M.J. 66, 68 (1999); United States v. Nash, 71 M.J. 83 (C.A.A.F. 2011).  Oddly, and unlike the civilian case, it is the person who orders the trial who gets to select who will decide the case he has referred to trial.  The commander cannot systematically or for bad motive select a panel likely to be biased in some way toward an accused.  For example, a person who believes that all convicted accused’s must be punitively discharged.  The primary engine for challenging members once appointed is through voir dire, and then showing actual or implied bias.  United States v. Gooch, 69 M.J. 353 (C.A.A.F. 2010).

This is the second Coast Guard panel challenge case in just a short period.  United States v Riesbeck has been examined here, by colleague Sam Adams.  Riesbeck may be viewed as a “normal” issue of panel stacking.  Panel stacking questions often arise with rank or gender of the selected members.  There is the anomalous case of volunteerism in United States v. Dowty, 60 M.J. 163 (C.A.A.F. 2004), [1] which joins Sullivan as being an oddity – serious, but odd.

How many times during a trial do you try to guess what the members are thinking, and what their decision is – I would suggest we do that many times throughout a trial.  We do this because we are responding to a client’s comment about a look, a question, or the demeanor of one or more members. We do this to try and sense how our case is going for tactical reasons.  We do this because we hope to gain some “insight” on the next steps.  A pretty common reason is whether or not we feel the client needs to testify.

Of course we can never know what the members are really thinking.  During the occasional after court talk it becomes clear that what we thought the members were thinking was not what they were thinking, etc., etc., etc.

So, it’s a worthwhile effort in situational awareness to try and monitor the members.  But what happens if their thinking becomes more obvious or blatant – or possibly so.  At times, I have addressed the issue of the members having already decided the case or evidenced a bias because of a question one of them has asked.