U.S. v. Hurn, 55 M.J. 446

Military Justice Personnel: Court Members: Peremptory Challenges

1. upon timely objection to a peremptory challenge, a prima facie case of discrimination is established, and the burden shifts to the challenging party to give a race-neutral explanation; that burden remains on the challenging party until a race-neutral reason is given
2. because of the differences between military and civilian tribunals and the holding in United States v. Moore, 28 MJ 366 (CMA 1989), a trial counsel may not exercise a peremptory challenge on the basis of a proffered reason that is unreasonable, implausible, or that otherwise makes no sense
3. reason proffered in this case, to protect the quorum, does not satisfy the purpose of Batson v. Kentucky, 476 U.S. 79 (1986), United States v. Moore, 28 MJ 366 (CMA 1989), and United States v. Tulloch, 47 MJ 283 (1997), which is to protect participants in judicial proceedings from racial discrimination
4. trial counsel’s asserted reason for a peremptory challenge, to protect the quorum, did not overcome the prima facie case of discrimination because he failed to explain why he challenged the only non-Caucasian officer instead of any of the Caucasian officers
5. Court of Appeals for the Armed forces declines to apply waiver to a defense challenge to a peremptory challenge where defense counsel made a timely objection, the military judge twice interrupted defense counsel, and military judge did not give defense counsel an opportunity to disagree with trial counsel’s asserted basis for the peremptory challenge
6. permitting trial counsel to offer a different reason for a peremptory challenge by means of an ex parte affidavit submitted more than two-and-a-half years after the fact would undermine the procedures adopted in courts-martial to test peremptory challenges; here, the explanation had not been tested in an adversarial setting, defense counsel had not had an opportunity to dispute the explanation, and there had been no factual determinations by a military judge

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. the Courts of Criminal Appeals have broad factfinding powers, but Congress intended a Court of Criminal Appeals to act as factfinder in an appellate-review capacity only after a trial court made findings based on its consideration of the evidence, and not in the first instance as a trial court