U.S. v. Hurn, 58 M.J. 199

Military Justice Personnel: Court Members: Peremptory Challenges

1. Batson v. Kentucky, 476 U.S. 79 (1986), prohibits peremptory challenges based on race; this Court has adopted a per se application of Batson, placing the burden on the challenging party, upon timely objection, to provide a race-neutral explanation for the challenge; the proffered reason for the challenge may not be one that is unreasonable, implausible, or that otherwise makes no sense
2. a military judge’s determination that the trial counsel’s peremptory challenge was race-neutral is entitled to great deference and will not be overturned absent clear error
3. trial counsel's post-trial reason for a peremptory challenge was accepted as race-neutral after a military judge determined in a DuBay hearing that the only non-Caucasian officer on the panel was challenged to protect the quorum and that officer had informed trial counsel that he desired not to be a member because of his pressing workload