U.S. v. Gooch, 69 M.J. 353

First Principles: Constitutional Matters: Due Process

1. as a matter of due process, an accused has a constitutional right, as well as a regulatory right, to a fair and impartial panel

First Principles: Constitutional Matters: Right to Counsel

1. the Sixth Amendment guarantees a criminal accused, including military service members, the right to effective assistance of counsel

Military Justice Personnel: Defense Function: Effective / Ineffective Assistance of Counsel

1. an appellant cannot waive a claim of ineffective assistance of counsel where waiver is based on the very advice he asserts was ineffective
2. in assessing the effectiveness of counsel, an appellate court applies the standard set forth in Strickland v. Washington, 466 US 668, 687 (1984), and begins with the presumption of competence announced in United States v. Cronic, 466 US 648, 658 (1984); the court applies a three-part test to determine whether the presumption of competence has been overcome: (1) are appellant’s allegations true; if so, is there a reasonable explanation for counsel’s actions; (2) if the allegations are true, did defense counsel’s level of advocacy fall measurably below the performance ordinarily expected of fallible lawyers; and (3) if defense counsel was ineffective, is there a reasonable probability that, absent the errors, there would have been a different result
3. an appellate court will not second-guess the strategic or tactical decisions made at trial by defense counsel; where an appellant attacks the trial strategy or tactics of the defense counsel, the appellant must show specific defects in counsel’s performance that were unreasonable under prevailing professional norms
4. defense counsel was not ineffective in deciding not to move to dismiss a specification that the members had improperly proposed to reconsider after its findings were announced, where the military judge ruled that if the specification was dismissed, the appropriate resolution would be to direct the members to disregard it in arriving at a sentence or to declare a mistrial if any one or more members stated they could not disregard it, and defense counsel wanted to avoid the risk of a mistrial because he was concerned that a new panel would be less sympathetic to appellant; it was counsel’s tactical concern about the prospect of a mistrial that drove his decision not to have the military judge dismiss the specification; although another attorney might have litigated this issue differently, defense counsel’s conduct did not fall measurably below the performance expected of ordinary fallible lawyers, and appellant did not overcome the presumption that defense counsel acted competently

Military Justice Personnel: Court Members: Generally

1. as a matter of due process, an accused has a constitutional right, as well as a regulatory right, to a fair and impartial panel

Military Justice Personnel: Court Members: Challenges for Cause

1. RCM 912(f)(1)(N) provides that a member shall be excused for cause whenever it appears that the member should not sit as a member in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality; an example of a scenario under subsection (N) that may be grounds for challenge includes where a member has a decidedly friendly or hostile attitude toward a party

Military Justice Personnel: Court Members: Eligibility/Selection

1. voir dire is the principal legal instrument used to ensure that those members who qualify for service as panel members can do so free from conflict and bias
2. Article 25(a), UCMJ, generally provides that any commissioned officer on active duty is eligible to serve on all courts-martial; section 25(d), however, delimits this eligibility; subsection (d)(1) provides that members junior in rank or grade to the accused are ineligible to serve when it can be avoided, and subsection (d)(2) further provides that a member is per se ineligible when he is the accuser or a witness for the prosecution or has acted as investigating officer or as counsel in the same case; other relationships might similarly disqualify an otherwise eligible officer during the screening process, such as the parent of a victim
3. from among officers eligible to serve on a court-martial panel, the convening authority shall detail as members thereof such members as, in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament
4. although the convening authority must personally select the court-martial members, he or she may rely on staff and subordinate commanders to compile a list of eligible members
5. three principles inform the screening of servicemembers for court-martial service: (1) an improper motive to pack the member pool will not be tolerated; (2) systemic exclusion of otherwise qualified potential members based on an impermissible variable such as rank, race, or gender is improper; and (3) an appellate court will be deferential to good faith attempts to be inclusive and to require representativeness so that court-martial service is open to all segments of the military community
6. screening potential members of junior rank or grade is not only proper; it is required by Article 25(d)(1), UCMJ
7. although not enumerated as an express criterion in Article 25, UCMJ, availability in the military context is an appropriate screening factor; this is implicit in the overall structure of the UCMJ, which is intended to promote justice as well as to assist in maintaining good order and discipline; it is also reflected in the language of Article 25(d)(1), UCMJ, contemplating that there may be circumstances, not at issue here, where service by officers junior to an accused cannot be avoided; for these reasons, availability is recognized as a valid consideration in member selection
8. availability cannot be used to mask exclusion or evade Article 25, UCMJ, criteria; and, where necessary or appropriate, it is also subject to judicial review at the trial level
9. the screening methodology used to select members of an African American accused’s court-martial panel, under which potential members were screened out based on possible personal knowledge of the case as well as a possible a personal relationship with the accused, was not impermissibly designed to exclude members of the accused’s race; although the screening methodology used had the effect of excluding three of the four eligible African American members from consideration by the convening authority, there was no evidence in the record of an improper motive to pack the member pool or to exclude members based on race
10. possible personal knowledge of the case and possible personal knowledge of the accused were not appropriate selection criteria with which to categorically exclude service as a panel member where (1) these categories are not express categories provided for by the Congress in Article 25, UCMJ; (2) the text of RCM 912 reflects the President’s intent that the appropriate mechanism for addressing potential bias or knowledge of the case and of the accused is through voir dire; (3) this point is particularly apt where the category of exclusion is conditional involving only the possibility of knowledge, let alone, knowledge that would preclude panel service - such selection criteria would act to exclude not only members with negative or positive biases toward an accused but also members with no view one way or the other who could potentially make it through the voir dire process; (4) the methodology used had the effect of significantly limiting the potential pool of officers from which the CA might apply the Article 25, UCMJ, criteria; and (5) by delimiting the pool of potential members in this way, the government arguably, although not purposefully, afforded itself the opportunity in effect to peremptorily challenge any officer at the command who might know appellant and have a favorable view of appellant’s professional service
11. however well-intentioned, the convening authority’s staff cannot exclude an entire class of eligible members based on mere possibilities; however, the staff need not include all eligible members or those with obvious conflicts
12. voir dire as provided for in Article 41, UCMJ, and regulated by the President under RCM 912, is the codal method for identifying and screening members based on potential bias, not categorical exclusion; voir dire provides an accused (and the government) with the necessary safeguards in the form of unlimited challenges for cause based on actual or implied bias and the liberal grant mandate on the record and supervised by the military judge
13. possible personal knowledge of the case or the accused, based on contemporaneous service alone, is not a proper basis for screening potential members under Article 25, UCMJ; the government is not entitled to exclude all potential members who might have a favorable (or unfavorable) view of an accused based on prior professional contact; possible personal knowledge of the accused or the case are not Article 25, UCMJ, criteria
14. the mechanism for addressing bias, the potential for bias, or the appearance of bias among panel members, is through voir dire and the use of causal and peremptory challenges
15. a nonconstitutional error in excluding a class of potential members from appellant’s court-martial based on dates of service at his base because such persons might have knowledge of the case or knowledge of appellant did not materially prejudice appellant’s right to a fair and impartial panel for two reasons; first, the Article 25, UCMJ, criteria were applied to the potential pool of members forwarded to the CA, who could select from the list or from others as he deemed appropriate and who personally selected the members; and second, the panel by which appellant was tried was fair and impartial, where the military judge conducted a rigorous and diligent voir dire process, in which he properly applied the law, including consideration of actual and implied bias

Military Justice Personnel: Convening Authority: Generally

1. from among officers eligible to serve on a court-martial panel, the convening authority shall detail as members thereof such members as, in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament
2. although the convening authority must personally select the court-martial members, he or she may rely on staff and subordinate commanders to compile a list of eligible members
3. however well-intentioned, the convening authority’s staff cannot exclude an entire class of eligible members based on mere possibilities; however, the staff need not include all eligible members or those with obvious conflicts

Trial Stages: Merits: Trial Procedures › Voir dire

1. voir dire is the principal legal instrument used to ensure that those members who qualify for service as panel members can do so free from conflict and bias
2. voir dire as provided for in Article 41, UCMJ, and regulated by the President under RCM 912, is the codal method for identifying and screening members based on potential bias, not categorical exclusion; voir dire provides an accused (and the government) with the necessary safeguards in the form of unlimited challenges for cause based on actual or implied bias and the liberal grant mandate on the record and supervised by the military judge
3. the mechanism for addressing bias, the potential for bias, or the appearance of bias among panel members, is through voir dire and the use of causal and peremptory challenges

Trial Stages: Appeals: Harmless / Prejudicial Error

1. a nonconstitutional error in excluding a class of potential members from appellant’s court-martial based on dates of service at his base because such persons might have knowledge of the case or knowledge of appellant did not materially prejudice appellant’s right to a fair and impartial panel for two reasons; first, the Article 25, UCMJ, criteria were applied to the potential pool of members forwarded to the CA, who could select from the list or from others as he deemed appropriate and who personally selected the members; and second, the panel by which appellant was tried was fair and impartial, where the military judge conducted a rigorous and diligent voir dire process, in which he properly applied the law, including consideration of actual and implied bias

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

1. whether a panel has been properly selected is a question of law reviewed by an appellate court de novo; the reviewing court is bound by the military judge’s findings of fact unless they are clearly erroneous
2. having found nonconstitutional error in the application of Article 25, UCMJ, an appellate court must determine if the error materially prejudiced the substantial rights of the accused
3. with respect to nonconstitutional error, the burden of persuasion depends on the nature of the error; first, in the case of administrative mistake, the appellant must demonstrate prejudice; second, where the government has intentionally included or excluded a class of eligible members, the government must demonstrate lack of harm; and third, in the case of unlawful command influence, the government must prove beyond a reasonable doubt that the error was harmless
4. where there was a nonconstitutional error in the categorical exclusion of a class of potential members from appellant’s court-martial based on dates of service at his base, the burden of persuasion rests with the government to show lack of harm
5. in assessing the effectiveness of counsel, an appellate court applies the standard set forth in Strickland v. Washington, 466 US 668, 687 (1984), and begins with the presumption of competence announced in United States v. Cronic, 466 US 648, 658 (1984); the court applies a three-part test to determine whether the presumption of competence has been overcome: (1) are appellant’s allegations true; if so, is there a reasonable explanation for counsel’s actions; (2) if the allegations are true, did defense counsel’s level of advocacy fall measurably below the performance ordinarily expected of fallible lawyers; and (3) if defense counsel was ineffective, is there a reasonable probability that, absent the errors, there would have been a different result
6. an appellate court will not second-guess the strategic or tactical decisions made at trial by defense counsel; where an appellant attacks the trial strategy or tactics of the defense counsel, the appellant must show specific defects in counsel’s performance that were unreasonable under prevailing professional norms
7. claims of ineffective assistance of counsel are reviewed by an appellate court de novo

Trial Stages: Appeals: Waiver

1. an appellant cannot waive a claim of ineffective assistance of counsel where waiver is based on the very advice he asserts was ineffective