U.S. v. Thomas, 86 M.J. 15

First Principles: Constitutional Matters: Due Process

1. the Batson (Batson v. Kentucky, 476 US 79 (1986)) right to equal protection is a part of due process under the Fifth Amendment; and so, it applies to courts-martial, just as it does to civilian juries

First Principles: Constitutional Matters: Equal Protection

1. the privilege to strike individual jurors through peremptory challenge is subject to the commands of the Equal Protection Clause, which forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the prosecution's case against a black defendant
2. the Batson (Batson v. Kentucky, 476 US 79 (1986)) right to equal protection is a part of due process under the Fifth Amendment; and so, it applies to courts-martial, just as it does to civilian juries

First Principles: Constitutional Matters: Right to a Jury Trial

1. structural differences between courts-martial and civilian trials include the following: (1) courts-martial are not subject to the jury trial requirements of the Constitution; (2) military accused are tried by a panel of their superiors, not by a jury of their peers; (3) military panels are selected by the commander who convened the court-martial on a best-qualified basis and are not drawn from a random cross-section of the community; (4) military counsel are provided with only a single peremptory challenge, in contrast to the numerous peremptory challenges permitted by most civilian jurisdictions; and (5) in civilian jurisdictions, the numerous peremptory challenges are used to select a jury, but in courts-martial, a peremptory challenge is used to eliminate those already selected by the convening authority

Military Justice Personnel: Military Judge: Generally

1. military judges are presumed to know the law and to follow it, absent clear evidence to the contrary
2. in a dispute over a peremptory challenge, a military judge's decision on the ultimate question of discriminatory intent represents a finding of fact of the sort that is accorded great deference on appeal absent clear error
3. a military judge ruling on a Batson challenge is presumed to know that she must make a finding as to whether a facially neutral peremptory strike masks a discriminatory purpose; applying that presumption, a finding of no purposeful discrimination may be implied by a military judge's ruling granting a peremptory strike even where the military judge failed to state her findings on the record

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. in a dispute over a peremptory challenge, if there is a factual dispute about a court member's demeanor, a military judge normally can and should resolve this dispute about the factual basis for the challenge
2. in a dispute over a peremptory challenge, a military judge must determine whether a trial counsel's proffered explanation is credible or merely a pretext for intentional racial discrimination

Military Justice Personnel: Court Members: Peremptory Challenges

1. the privilege to strike individual jurors through peremptory challenge is subject to the commands of the Equal Protection Clause, which forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the prosecution's case against a black defendant
2. Batson (Batson v. Kentucky, 476 US 79 (1986)) established the following three-part test to determine whether the government's exercise of a peremptory challenge violates the prohibition on racial discrimination in the jury selection process: (1) the accused must make a prima facie showing of purposeful discrimination, (2) once the accused has made this showing, the burden shifts to the government to come forward with a race-neutral explanation for the challenge, and (3) if the government provides a facially neutral explanation, the trial judge must determine whether the prosecutor's stated reasons were the actual reasons or instead were a pretext for discrimination
3. the Batson right to equal protection is a part of due process under the Fifth Amendment; and so, it applies to courts-martial, just as it does to civilian juries
4. in light of the structural differences between courts-martial and civilian trials, the CAAF has articulated a modified version of Batson applicable to courts-martial; this modified standard replaces the first step of the Batson analysis with a per se rule: upon timely objection to a peremptory challenge, a prima facie case of discrimination is established; once an accused has made a prima facie case of discrimination, the modified standard places a heightened burden on the government to satisfy the second step of the Batson analysis by providing not only a race-neutral explanation, but one that is not unreasonable, implausible, or that otherwise makes no sense; finally, if the government offers a facially neutral basis for the strike, the burden shifts to the accused to prove purposeful discrimination; then, the military judge must determine whether the asserted justification is merely a pretext for intentional race-based discrimination
5. a race-neutral reason is an explanation based on something other than the race of the court member
6. in a dispute over a peremptory challenge, if there is a factual dispute about a court member's demeanor, a military judge normally can and should resolve this dispute about the factual basis for the challenge
7. in a dispute over a peremptory challenge, in the absence of any factual disagreement as to the court member's body language or demeanor, a trial counsel's interpretation of the challenged member's demeanor will be accepted as credible
8. in a dispute over a peremptory challenge, a military judge must determine whether a trial counsel's proffered explanation is credible or merely a pretext for intentional racial discrimination
9. in a dispute over a peremptory challenge, a military judge's decision on the ultimate question of discriminatory intent represents a finding of fact of the sort that is accorded great deference on appeal absent clear error
10. in a dispute over a peremptory challenge, where a military judge's decision on the ultimate question of discriminatory intent is lacking, an appellate court affords the decision less deference
11. a military judge ruling on a Batson challenge is presumed to know that she must make a finding as to whether a facially neutral peremptory strike masks a discriminatory purpose; applying that presumption, a finding of no purposeful discrimination may be implied by a military judge's ruling granting a peremptory strike even where the military judge failed to state her findings on the record
12. in this case, the military judge did not abuse her discretion by denying the Batson challenge to a prospective mixed race panel member who had identified himself as having been the target of racial epithets; the government stated reason for striking the member was that both his verbal voir dire responses and his attitude minimized his experiences as a victim of racially derogatory language, leading the government to have concerns that he would not take the charged offenses seriously; this was a reasonable, plausible, facially race-neutral reason for striking the member where the government's explanation focused on the member's responses to questions about his experiences, and not on his race; and furthermore, appellant failed to meet his burden of showing that reason was a pretext for racial discrimination; although the military judge failed to provide an express ruling on the question of whether the reason was merely a pretext for intentional race-based discrimination, the military judge implicitly found the government's stated purpose to be genuine and not a pretext for purposeful discrimination

Trial Stages: Appeals: Court of Appeals for the Armed Forces

1. in light of the structural differences between courts-martial and civilian trials, the CAAF has articulated a modified version of Batson applicable to courts-martial; this modified standard replaces the first step of the Batson analysis with a per se rule: upon timely objection to a peremptory challenge, a prima facie case of discrimination is established; once an accused has made a prima facie case of discrimination, the modified standard places a heightened burden on the government to satisfy the second step of the Batson analysis by providing not only a race-neutral explanation, but one that is not unreasonable, implausible, or that otherwise makes no sense; finally, if the government offers a facially neutral basis for the strike the burden shifts to the accused to prove purposeful discrimination; then, the military judge must determine whether the asserted justification is merely a pretext for intentional race-based discrimination

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

1. subject to certain qualifications, an appellate court reviews a military judge's decision to deny a Batson (Batson v. Kentucky, 476 US 79 (1986)) challenge for an abuse of discretion
2. a military judge abuses her discretion when her findings of fact are clearly erroneous, the court's decision is influenced by an erroneous view of the law, or the military judge's decision on the issue at hand is outside the range of choices reasonably arising from the applicable facts and the law
3. an abuse of discretion does not mean that an appellate court merely would reach a different conclusion but rather that the military judge's ruling was arbitrary, fanciful, clearly unreasonable, or clearly erroneous
4. whether a race-neutral explanation in a Batson challenge is reasonable is a question of law that an appellate court reviews de novo
5. in a dispute over a peremptory challenge, a military judge's decision on the ultimate question of discriminatory intent represents a finding of fact of the sort that is accorded great deference on appeal absent clear error
6. in a dispute over a peremptory challenge, where a military judge's decision on the ultimate question of discriminatory intent is lacking, an appellate court affords the decision less deference
7. a military judge ruling on a Batson challenge is presumed to know that she must make a finding as to whether a facially neutral peremptory strike masks a discriminatory purpose; applying that presumption, a finding of no purposeful discrimination may be implied by a military judge's ruling granting a peremptory strike even where the military judge failed to state her findings on the record