U.S. v. Jeter, 84 M.J. 68

First Principles: Constitutional Matters: Equal Protection

1. equal justice under law requires a criminal trial free of racial discrimination in the jury selection process
2. Fifth Amendment equal protection includes the right to be tried by a jury from which no cognizable racial group has been excluded
3. neither in civilian courts nor in a court-martial does the Fifth Amendment guarantee an accused jurors or members who are of the same race
4. the Equal Protection Clause forbids the States to strike black veniremen on the assumption that they will be biased in a particular case simply because the defendant is black; the statement is no less true as it pertains to the military justice system when the convening authority is allowed to add some arbitrary number of African-American members because they and the accused share the same race or ethnic group

Military Justice Personnel: Court Members: Eligibility/Selection

1. Article 25(d)(2), UCMJ (2012), provides that when convening a court-martial, a convening authority shall detail as members thereof such members of the armed forces as, in his or her opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament; it makes no mention of race as one of the factors that may be considered in the panel selection process
2. using race when deciding who should be appointed to a court-martial venire panel is not permitted, even if an African-American servicemember is added to the panel in the case of an African-American accused, abrogating US v. Crawford, 15 CMA 31, 35 CMR 3 (1964)
3. to the extent that US v. Crawford, 15 CMA 31, 35 CMR 3 (1964), allows a convening authority to depart from the factors present in Article 25(d)(2), UCMJ, by seeking, even in good faith, to use race as a criterion for selection in order to make the members panel more representative of the accused's race, it has been abrogated by Batson v. Kentucky, 476 US 79 (1986)
4. whenever an accused makes a prima facie showing that race played a role in the panel selection process at his court-martial, a presumption will arise that the panel was not properly constituted; the government may then seek to rebut that presumption
5. Article 25, UCMJ, does not present an exhaustive list of the factors that may be considered in the court-martial panel selection process; other factors that are also not listed in Article 25, UCMJ, such as operational necessity or availability of prospective members, have long been recognized as valid considerations; and unlike race, none of these other factors have ever been expressly disavowed by the Supreme Court
6. race is an impermissible criterion for selection of jurors; a person's race simply is unrelated to his or her fitness as a juror
7. equal justice under law requires a criminal trial free of racial discrimination in the jury selection process
8. Fifth Amendment equal protection includes the right to be tried by a jury from which no cognizable racial group has been excluded
9. neither in civilian courts nor in a court-martial does the Fifth Amendment guarantee an accused jurors or members who are of the same race
10. the Equal Protection Clause forbids the States to strike black veniremen on the assumption that they will be biased in a particular case simply because the defendant is black; the statement is no less true as it pertains to the military justice system when the convening authority is allowed to add some arbitrary number of African-American members because they and the accused share the same race or ethnic group
11. race shall not be a criterion in the selection of court-martial members; it is impermissible to exclude or intentionally include prospective members based on their race
12. in this case, appellant made a prima facie showing that gave rise to a presumption that race was allowed to enter the selection process for his court-martial in violation of his equal protection rights where the circumstances included a racial identifier in the questionnaires, other evidence, and importantly, the command's belief that prior case law that authorized the consideration of race was still good law
13. in this case, the use of a race-conscious component in the selection process combined with the absence of any evidence in the record addressing how and by whom selection was made from this pool of members leaves us to seriously question whether the impermissible criterion of race might have found its way into the selection process, possibly even before the convening authorities made their selections; although the government obtained affidavits from the SJA, the convening authority, and the acting convening authority regarding this matter, for all intents and purposes those affidavits simply reflected that they could not recall how the venire panel was chosen; accordingly, an unrebutted inference exists that appellant's constitutional right to equal protection under the law was violated when the acting convening authority presumptively used a race-conscious selection process for panel members

Military Justice Personnel: Convening Authority: Generally

1. a convening authority is not required to be race-ignorant; he or she is only required to be race-neutral
2. a convening authority may not draw up a members panel pursuant to the neutral criteria of Article 25, UCMJ, only to have discriminated at other stages of the process

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Trial Burdens, Standards › Selection of members

1. whenever an accused makes a prima facie showing that race played a role in the panel selection process at his court-martial, a presumption will arise that the panel was not properly constituted; the government may then seek to rebut that presumption

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: Generally

1. when a statute speaks with clarity to an issue, judicial inquiry into the statutes meaning is finished; the basic and unexceptional rule is that courts must give effect to the clear meaning of the statute as written