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Stacked deck
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.
In Sullivan, the claim is that the client was prejudiced “by the improper exclusion of flag officers from service on his court-martial.” Slip op. at 3. The Appellant was a captain (O-6). The court found that it was error to exclude flag officers from potential selection, but found the error to be harmless.
I anticipate a petition to CAAF. It will be interesting to see what approach the appellant takes.
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[1] For what it is worth, I was the Article 32, UCMJ, investigator in Dowty, in 1998. The case had a somewhat tortuous six year appellate history, and is also significant for treatment of the Right to Financial Privacy Act’s impact on the statute of limitations in courts-martials.