The difference surrounding how courts go through jury selection might seem straightforward on the outside; however, when it comes to military courts, the process is atypical of what is to be expected and should be understood fully before going.
Without a thorough knowledge of the military court system and a strong attorney, many service members are finding themselves on the receiving end of a jury that has been skewed against them. This leads to a perceived lack of the constitutionally required "reasonable and fair trial" when going through a court-martial.
Before a military trial, the attorney for the government and the accused are allowed and ethically required to challenge members of a jury in the military justice system for bias, case knowledge, participation in the proceedings leading to the trial and other reasons.
Additionally, they also have one "peremptory" challenge, which allows either party to exclude a juror without the need for any reason or explanation, barring regular discriminatory concerns such as their removal based on race, gender, ethnicity and so on. However, even after the opposing sides exercise a peremptory challenge, military members often are left with biased jury members in the limited pool of eligible jurors.
In the military criminal justice system, the convening authority (usually the general in charge of a large military installation, base or fort) exercises significant prosecutorial discretion as to whether charges will be brought to a court-martial. They also exercise the power (under Article 25(e)(2) of the Code) to pick the military jury members who are entered into the selection process of the court-martial who will decide the ultimate merits of the case.
This is, as reflected in the results of cases we have litigated, a power which some have described as the definition of the word "peremptory" predicts -- imperious, dictatorial and unconstitutional. What this means is a "preemptory" challenge to the inclusion of a member on a military jury (known as voir dire panel members) begins at the Military Entrance Processing Station (MEPS). The military annually rejects as unqualified more than 67% of applicants who try to join the military.
Therefore, any military jury is a tiny subset of an already selective pool of military members. Another rather unique element of a military jury is that each member must be senior in rank to the accused. In a civilian court trial, a credentialed doctor can be judged by a fast-food employee, while in the military, a senior noncommissioned officer likely will be judged by an officer panel alone. This creates a very unique disparity in the military justice system, since a limited pool of jury applicants, along with the selectivity of those who are eligible to serve, often leads to concerns of fairness in these proceedings.
According to a recent congressional research service report, approximately 14% of the U.S. population between ages 18-64 are African American, but only 8.1% of active-duty military officers identify as African-American. Additionally, 18% of the U.S. adult population between the ages 18-65 are of Hispanic or Latino/Latinx origin, but only 7% of active-duty military officers identify as this demographic.
Thus, a military jury composed of officers alone is much more likely to be composed of a super majority or entirely consisting of white male members in a much larger percentage than a civilian jury of one's peers. In fairness, we should be clear that when the military officer corps is compared to the college degree-holding population in the civilian adult community, the differences articulated here are much less pronounced, but this goes to structural problems demonstrative of the fact that a large percentage of each state's prison population is ethnic minority -- far in excess of the state demographic breakdowns in general.
This clear negative feedback loop is harmful, giving credibility to the feeling among members of the military who identify as an ethnic minority of excessively harsh treatment in violation of basic constitutional protections and in contradiction to public policy pronouncements of the military of claiming to treat everyone with equal dignity and respect.
More than 40% of enlisted military personnel hold a college degree as of 2020, according to information from the Defense Department. If the goal of a military jury is to have college-educated members on court-martial panels, then there is no rational basis to exclude, by operation of law, enlisted personnel automatically. Furthermore, enlisted personnel strongly are disfavored for court-martial duty, as a matter of law by operation of normal existing procedures of courts-martial composition. Additionally, jurors in civilian trials do not need to hold college degrees as a requirement of serving on juries, and they represent a much larger cross-section of the community than juries in courts-martial trials.
These discrepancies in the composition of the military officer corps translate into an equivalent disparity in the military jury selection process. This is concerning since the Supreme Court's handling of similar systemic disparities suggests it is not a concern for the accused or accused representation alone: "Defendants in criminal proceedings do not have the only cognizable legal interest in nondiscriminatory jury selection. People excluded from juries because of their race are as much aggrieved as those indicted and tried by juries chosen under a system of racial exclusion." Carter v. Jury Commission, 396 U.S. 320, 330 (1970).
That precedent appears to demonstrate the systemic failure of the U.S. government through the officer selection and ascensions process. Often it is stacked with legacy selections based on familial connections and military history, resulting in a lack of a proper racially and ethnically diverse officer corps. This indicates that the military jury selection process might be skewed in a manner that violates not only the accused's rights, but also the rights of all Americans to participate equitably in punishing alleged or purported crimes against society or military discipline in their armed forces. As the Supreme Court explained in Batson v. Kentucky, "The harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community."
What does all of this mean?
Those from lower economic backgrounds, disproportionately members of rural communities and ethnic minorities, have a much harsher military experience when it comes to the application of military justice. Those with resources and connections and those able to fight back against military corruption are often in a better position to withstand the stacked deck of military justice. It is imperative for those facing accusations in the military justice system to retain aggressive and experienced counsel to fight back hard, as the government has both the methods, methodology and means to stack the deck to obtain an unfair outcome.
-- Sean Timmons is the managing partner of Tully Rinckey PLLC
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