U.S. v. Wiesen, 57 M.J. 48

First Principles: Constitutional Matters: Right to a Jury Trial

1. (Recon.)(Sixth Amendment right to trial by jury does not apply to courts-martial; who may serve on a court-martial is governed instead by Article 25, Uniform Code of Military Justice, 10 USC § 825, which permits the convening authority – the official who has exercised prosecutorial discretion in the case – personally to select the members of the court-martial panel)

Military Justice Personnel: Court Members: Challenges for Cause

1. (Recon.) (the burden of establishing grounds for a challenge for cause rests upon the party making the challenge)
2. Court of Appeals for the Armed Forces did not improperly established a per se rule requiring disqualification of a senior member who writes or endorses an efficiency report for a junior member; it is well settled that a senior-subordinate/rating relationship does not per se require disqualification of a panel member
3. a defense challenge of a panel member for cause based on implied bias met its burden of establishing grounds for a challenge by referencing the member's supervisory position over six of the other nine panel members, a fact established during voir dire
4. (Recon.)(implied bias is defined in terms of a bias viewed through the eyes of the public)
5. (Recon.)(in a case involving a court member with a supervisory position over six of the other nine panel members, implied bias is appropriately viewed in the context of public perceptions of a system in which the commander who exercises prosecutorial discretion is the official who selects and structures the panel that will hear the case)

Military Justice Personnel: Court Members: Eligibility/Selection

1. (Recon.)(Sixth Amendment right to trial by jury does not apply to courts-martial; who may serve on a court-martial is governed instead by Article 25, Uniform Code of Military Justice, 10 USC § 825, which permits the convening authority – the official who has exercised prosecutorial discretion in the case – personally to select the members of the court-martial panel)