Chapter 9 Memberselection in General Courts-martial

LibraryMastering Voir Dire and Jury Selection: Gain an Edge in Questioning and Selecting Your Jury (ABA) (2018 Ed.)
CHAPTER 9 Member1 Selection in General Courts-Martial

Objectives:

• To understand how members are selected in courts-martial
• To understand the major differences between the civilian jury trials and military courts-martial
• To develop procedures and approaches that improve member selection

At 1:35 p.m. on November 5, 2009, U.S. Army Maj. Nidal Hasan entered the Soldier Readiness Processing Center at Fort Hood, Texas, and opened fire on soldiers at the center. Shouting "Allahu Akbar" ("God is Great"), he fired repeatedly, killing twelve soldiers and one civilian doctor and wounding thirty-two others in what was the worse act of mass murder at a U.S. military installation. In the subsequent exchange of fire with civilian police, Maj. Hasan was wounded and paralyzed from the waist down. From October 14, 2010, to November 15, 2010, an Article 32 hearing was held to determine if there was sufficient evidence to recommend the court-martial of Maj. Hasan. On November 18, 2010, the investigating officer recommended a general court-martial and capital charges against Maj. Hasan. The commander of Fort Hood referred the case to a general court-martial with accompanying authorization of the death penalty on July 6, 2011. The court members serving on the court-martial were originally planned to be drawn from Fort Still, Oklahoma. However, the pool of court members was later expanded to 140 members being drawn from a number of Army posts across the nation.

In the weeks immediately preceding Maj. Hasan's court-martial, Maj. Hasan fired his defense team and trial consultant,2 seeking to represent himself. Member selection began on July 9, 2013, and lasted approximately four days of the anticipated month-long member selection, with little questioning of panel members by Maj. Hasan, who, wearing a beard (contrary to Army regulations) and fatigues as opposed to a military dress uniform, conducted voir dire questioning from his wheelchair. At the end of member selection, of the twenty-six members considered, trial counsels (prosecutors) removed twelve members for cause and exercised their one peremptory challenge.3 Maj. Hasan did not seek to remove any members for cause—even when some expressed the view that they thought he was guilty; nor did he seek to reestablish the eligibility of members with concerns about the death penalty (i.e., member rehabilitation, a standard and accepted practice in courts-martial); nor did he exercise his one peremptory challenge.4 The panel selection results are shown in the box above.

Tracking the Member Selection Process in the Maj. Hasan Court-martial

Original pool of panel members

140

Panel members remaining as of the trial date

103

Number of members considered

26

Number of members removed out of total challenged for cause by the trial counsel

12/13

Number of members removed out of total challenged for cause by the accused

0/0

Number of members removed via peremptory challenges out of total peremptory challenges available to the trial counsel

1/1

Number of members removed via peremptory challenges out of total peremptory challenges available to the accused

0/1

Number of members on the panel

13

On August 23, 2013, a panel of thirteen officers consisting of nine colonels, three lieutenant colonels, and one major convicted Maj. Hasan on all forty-five counts after six hours of deliberations. On August 28, 2013, the panel sentenced Maj. Hasan to death after slightly more than two hours of deliberations following two days of testimony by victims and their families, and the failure of Maj. Hasan to raise a defense in the sentencing hearing. Maj. Hasan's only statement to the panel during sentencing was "The defense rests."5

General Courts-Martial: The Basics6

While the focus of this book is on jury selection issues in the civilian courts, member selection in military courts-martial contains many similarities along with key differences that warrant our attention.7 But before turning to member selection at trial, a brief overview of the court-martial process is needed.

The court-martial process begins with the allegation of an offense in which charges are "preferred" (usually by a superior officer or commanding officer) against the accused. The commanding officer convenes an Article 32 hearing, which is analogous to the preliminary hearing in the civilian system, to determine probable cause. The Article 32 hearing is presided over by an investigating officer who is appointed by the convening authority (commanding officer).8 The purpose of this hearing is to determine if a general court-martial or other action is warranted. The trial counsel (prosecutor) presents witnesses and evidence and, unlike preliminary hearings or grand jury proceedings, the defense may cross-examine witnesses and call its own witnesses. At the conclusion of the Article 32 hearing, the investigating officer makes a determination as to whether there is sufficient evidence to recommend a general court-martial or other actions.9 The investigating officer submits a recommendation for the disposition of the case to the convening authority. The convening authority, who consults a legal advisor, makes the decision concerning whether and through what forum any action will be taken.10 Once the convening authority determines that a general court-martial will be convened (the act of referring charges to a court-martial) the process for assembling the court members begins.

Creation of the Member Pool

How the military creates the member pool is radically different from the civilian system in several respects. A fundamental difference between military panels and civilian juries lies in the method for creating the member pool. Unlike the civilian juries, the convening authority plays a key role in the composition of the member pool in that the convening authority hand selects all members for the pool.11 Second, all court members of the pool must be equal or superior in rank to the accused. Third, enlisted personnel have the option of being tried by a panel consisting of officers or by a "mixed" panel consisting of no less than one-third enlisted members. Fourth, the convening authority designates court members in the pool as either primary or alternates. Those designated as primary members will be first into the panel box (jury box), in essence, the first full box. The alternates will serve as replacement members for those excused during the voir dire process. Alternates will enter the box in the order designated by the convening authority.

The convening authority's criteria for selecting members are established in UCMJ Article 25(d)(2) (2005), which states:

When convening a court-martial, the convening authority shall detail as members thereof such members of the armed forces as, in his opinion, are best qualified for the duty by reason of their age, education, training, experience, length of service, and judicial temperament.

The convening authority is expected to be personally involved in the process, even though certain staff may actually develop the list of names.

Always an Alternate, Never a Trial Member

At least one service branch (Army) employs the automatic replacement system, which produces an unexpected quirk in member service. With the designation of the primary member and alternate member, it is possible, and likely, for some alternates to never serve on a court-martial panel. The pool of court members usually is drawn for a specified time period, e.g., six months, and the original order and designation remains the same throughout this time period. Thus, those alternates appearing later in the assigned order may never have a chance to serve, particularly, as discussed later, in light of the fact that each side starts out with only one peremptory challenge. Random assignment of court members for each court-martial would remove this artifact.12 Such an approach was experimented with in 2006 at an Army post in Germany.13 After the court member pool was created (via convening authority selection), court members were randomly assigned to serve on courts-martial. The results of the random selection method included (1) more representative panels, (2) the greater opportunity for all members to participate, and (3) a lessened burden for members who would otherwise repeatedly serve on panels. These benefits came with corresponding greater implementation costs, such as (1) more questionnaires being processed at one time, (2) greater time and administrative expense for tracking members over time, and (3) more decisions on excusals being made on a last-minute basis given that random selection process occurred in advance of each trial.

The selection system for courts-martial stands in sharp contrast to the civilian system, which relies on some method of random selection for jury pools. Generally, the civilian system has turned away from such a personal knowledge selection system, often called the "key man" system, which is based on "key" members of a community knowing or appointing the potential jurors on the list and removing those they did not want on the list.14 As noted in the box on page 289, there has been considerable controversy surrounding the convening authority's control over the court-martial process, in particular, the reliance on a commander's personal choices in a military justice system where the commander has such great control over much of the process. Supporters of the status quo point to the unique circumstances surrounding the implementation of the military justice system and special needs and goals required by an effective military and its commanders. Opponents, which are not few in number, focus on the potential for abuse (unlawful command influence) and the need for public (and military personnel) confidence in the fairness of the system.

Once the convening authority has selected the pool of court members, the members generally are sent a written...

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