U.S. v. Chaney, 53 M.J. 383

Military Justice Personnel: Court Members: Peremptory Challenges

1. neither the prosecution nor the defense may engage in purposeful discrimination on the basis of race or gender in the exercise of peremptory challenges
2. military justice has a procedure for examining allegations of purposeful discrimination in the exercise of peremptory challenges: (1) if the party opposing the challenge believes that the other party has exercised a peremptory challenge against a member of a cognizable group, the opposing party must object and state the basis for the objection; (2) the party making the challenge must offer a reason for the challenge that is neutral in terms of race or gender, as applicable; and (3) the military judge must review the record and weigh the credibility of the counsel making the peremptory challenge before the judge makes a factual determination regarding the presence or absence of purposeful discrimination in the panel member’s rejection
3. even in fields that are predominately associated with one gender, the occupation of a challenged member may provide an acceptable race or gender neutral reason for a peremptory challenge if the proffered reason is not used as a pretext for an improper race or gender based challenge
4. a military judge must determine whether counsel’s occupation-based rationale for a preemptory challenge is a pretext by considering whether the proffer is unreasonable, implausible, or makes no sense; in making this determination, the military judge should take into consideration the party making the challenge, the facts of the case, and the particular occupation of the challenged court member
5. military judge did not err by sustaining peremptory challenge of only female member of a court-martial panel where: (1) trial counsel articulated that challenge was based on member’s occupation as a nurse; (2) military judge accepted this explanation as gender-neutral; (3) when defense counsel objected claiming the proffered reason was pretextual, the military judge noted that, in his experience, it was typical for trial counsel to exercise peremptory challenges against members of the medical group; (4) defense counsel did not object to military judge’s finding; and (5) the record made clear that the military judge granted the peremptory challenge based upon his general understanding that trial counsel commonly prefer not to have medical personnel serve as members, regardless of their gender
6. not all occupation-based peremptory challenges will pass judicial scrutiny without additional articulation to show that the proffered reason is not a pretext

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. in reviewing the propriety of peremptory challenges, the military judge’s determination of purposeful discrimination will be overturned only if it is clearly erroneous, and the military judge is given great deference because his or her determination is based primarily upon the judge’s personal evaluation of the credibility of the counsel making the challenge