Juries

Can You Ask Jurors How They Voted in 2016?

In the case of United States v. Sgt. Bowe Bergdahl, the answer to that question is "no."  

As some may recall, Sgt. Bergdahl is facing a military court-martial for walking away from his unit in Afghanistan.  After leaving his unit, Sgt. Bergdahl was captured by the Taliban and held captive for five years.  Sgt. Bergdahl was freed in 2014 after the U.S. released five Taliban detainees.  

During the 2016 presidential campaign, Donald Trump made numerous derogatory references about Sgt. Bergdahl to include calling him a "dirty rotten traitor."  Defense counsel believe that enquiring about a juror's presidential voting preferences will help determine whether or not the juror is biased against Sgt. Bergdahl.  While the judge did say "no" to the voting question, he will allow defense counsel to ask jurors whether they were influenced by the negative comments Trump made about Bergdahl.

Army Times: Judge: Bergdahl Attorneys Can't Ask If Jurors Voted for Trump

Military vs. Civilian Juries

Here is an interesting article that highlights a few differences between military and civilian juries.  This article is especially relevant in light of MAJ Nidal Malik Hasan's upcoming death penalty trial which is scheduled to begin tomorrow.  As some may recall, MAJ Hasan is accused of killing 13 people and injuring 30 others during a shooting rampage at Ft. Hood, Texas in 2009.

For prior blog posts about military juries go here and here.

Policymic:  5 Ways a Military Trial Is Different From a Civilian One

Anyone who has had the joy of receiving a jury summons knows how the process goes, and everyone else has a basic understanding: under the Constitution, American citizens have the right to be judged by a jury of their peers. One of the grievances listed in the Declaration of Independence was about King George III "depriving us in many cases, of the benefits of trial by jury." Juries usually consist of 12 jurors.

Military juries, however, are a different beast. Members are typically only commissioned military officers, though the accused has the option of requesting enlisted personnel in the member pool. A military jury does not need to be made up of 12 members; it can range from as few as three to as great as a dozen depending on the type of court-martial. In a capital case like the Fort Hood shooting, where the death penalty is sought, the jury must consist of 12 members (this is a relatively new requirement, only addedt o the UCMJ via an NDAA provision in the last decade). Hasan's panel will have 12 members and four alternates, and will consist of officers who outrank him. 

The Capital Jury Project and the Military: Law Review Article

This article discusses how one can use the findings of the Capital Jury Project in a military court-martial.

Lieutenant Colonel Eric Carpenter, An Overview of the Capital Jury Project for Military Justice Practitioners: Jury Dynamics, Juror Confusion, and Juror Responsibility, May ARMY LAWYER 2011.

Abstract:

This article will first cover the CJP findings on jury dynamics; will look at how the military’s rules that govern capital cases could impact panel dynamics; and will demonstrate that military panels in three capital courts martial have behaved consistently with the CJP findings. This article will next cover the CJP findings related to juror confusion and will demonstrate that military panels or military judges in three capital courts-martial have behaved consistently with those findings. Next, this article will discuss the concept of juror responsibility and how this concept may apply in a military context. Finally, this article will discuss a method of voir dire that defense counsel can  use in capital cases to address the issues raised by the CJP

 

 

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Voir Dire in the Military

The latest edition of the Army Lawyer has two articles discussing the voir dire process in military courts-martial.

Major Philip Staten, Clarifying the Implied Bias Doctrine: Bringing Greater Certainty to the Voir Dire Process in the Military Justice System

Colonel Mark Bridges,  A View from the Bench: The Overlooked Art of Conducting Voir Dire

 

 

 

Military Juries and Civilian Defendants

Here is a post from the Huffington Post that analyzes potential problems with prosecuting civilians overseas in a military court-martial.  As some may know, Article 2(a)(10) of the UCMJ was changed in 2006 to provide  the military with criminal jurisdiction over civilians who accompany the armed forces during a contingency operation.  In light of the defendant's 6th Amendment right to a fair and impartial jury, many have questioned the constitutional viability of this change to the UCMJ.  According to the post, the biggest constitutional hurdle with prosecuting civilians overseas by court-martial is the manner by which military juries operate.

First, the Manual for Courts-Martial only requires that the jury consist of five members. The Constitution does not require that a jury contain a certain amount of jurors, but the Supreme Court's decision in Ballew v. Georgia specifically held that a panel of five jurors was insufficient to meet the requirements of the Sixth Amendment. Furthermore, the military justice system does not require a unanimous verdict for a conviction. Again, unanimity is not a requirement for due process to be met, but when coupled with the military's lower numerical requirement for jurors, non-unanimous verdicts could potentially violate constitutional rights of civilian defendants.

The other Sixth Amendment concern is the composition of military juries. While civilian juries are chosen from diverse civilian populations in the district where the trial is to be held, military juries are chosen from active duty members of the military. Courts-martial do allow for a similar voir dire procedure, but this procedure may not be as effective when jurors are chosen from a more homogenized group than would be found in the civilian world. Another concern is that soldiers may harbor ill will towards civilian contractors leading to military juries being more likely to convict a defendant who is a contractor...to continue readng "If the UCMJ Doesn't Fit, You Must Acquit" go here.

Jury (Panel) Selection for Military Tribunals

Here are two articles that discuss the ongoing jury selection for the military tribunal at Guantanamo Bay.  I use the term "jury" loosely because the individuals selected to sit on the tribunals are actually "panel members" who are American military service members.

Wall Street Journal: Officer Rejected for Gitmo Panel Because He Agrees With Obama

Lexington Herald Leader:Jury selection begins in Guantanamo trial of Canadian detainee

Military vs. Civilian Juries

Here is an interesting article that compares the sentences issued by a military court-martial panel with that of a civilian criminal jury.  The issue has gained increased importance with the passage of the Military Extraterritorial Jurisdiction Act which gives the federal government greater authority to try individuals to include members of the military in civilian court for crimes committed outside the United States.  For example, if a member of the military commits a crime in Iraq but goes unpunished by the military and subsequently leaves military service, he or she can be prosecuted in the United States.  In some instances, as discussed in the article, the punishment may be more severe in the civilian court as opposed to the military court-martial.

A Panel of Their Peers

Prosecutors sought the death penalty for Green, but jurors spared his life when they failed to agree unanimously. Instead, Green received five consecutive life terms with no chance for release.

But he complains that his co-defendants got the deal of the century. The military did not seek the death penalty, instead using it to extract guilty pleas from the three. This resulted in sentences of 90 years for Barker, 100 years for Cortez and 110 years for Spielman, with each eligible for release in 10 years provided they testified against Green, the sole shooter...to continue reading go here.

Allegations of Juror Misconduct in Military Court-Martial

Here is something you don't see very often--allegations that a military juror (panel member) committed misconduct.  According to the article below, the military plans to conduct a post-trial hearing on April 14 into allegations that jurors sitting on the trial of SGT Justin Boyle acted improperly.  Specifically, the hearing will focus on whether the jurors in the Boyle court-martial failed to follow instructions and came to court with an agenda.  It will be interesting to see how this plays out in the military legal system.  Generally speaking, these type of allegations rarely succeed in the civilian legal system. 

This hearing may be due in large part to the unease some have, to include the victim's relatives, with SGT Boyle's conviction for involuntary manslaughter and his subsequent two-year sentence.  SGT Boyle, who along with other soldiers from Ft. Bragg, was trying to get the victim home after a night of drinking.  While in the process of getting the victim home, SGT Boyle placed him in a fatal chokehold. 

Military grants post-trial hearing in Luke Brown case