And You Thought Average Jury Selection Was Difficult…

As if jury selection isn’t tedious enough, it becomes even more so when a flag officer is being prosecuted. Per the Military Times, issues abound.

Here’s a quick synopsis of various issues at hand along with a bit of commentary.

  • A court-martial panel must consist of members who are senior in rank (or date of rank) to the accused. Except per Rule for Court-Martial (RCM) 912(f)(K) which states that a member of a court-martial panel shall be excused whenever they are “junior to the accused in rank, unless it is established that this could not be avoided.” Here, the Army may run out of general officers who have not already formed an opinion about Sinclair. That leads to the second point which is…
  • Will the court-martial turn to flag officers from other services? It is possible, and the Air Force is the logical choice given proximity and familiarity of the services.
  • Everything these flag officers say is important, and each is a present or potential court-martial convening authority. From looking at the discussion of each in the Military Times, they are publicly disclosing details on their view of crimes, witness credibility, criminal procedure, culpability, sentencing theory, and sexual assault. It will be interesting to see if any of their statements during voir dire (jury questioning and selection) comes back at a later date.
  • UPDATE: The military times notes that 3 generals remain on the panel. As of today, that is no longer true. They were struck by the military judge. (Thanks to Bill C. in his comment at CAAFLog.)

One thought on “And You Thought Average Jury Selection Was Difficult…

  1. Personally, in my opinion, as a retired senior enlisted Army soldier, …

    Should I ever have hypothetically been accused of an act for which I would would face a court martial, ….

    I would not mind being judged by my peers of any branch. (I certainly would have demanded that I have an enlisted member on my panel.)

    I believe that a panel of Other Service Judges (OSJ) would be more likely to be service-neutral on ethical issues and more likely to be less knowledgeable (and therefore more likely to listen to advocates and experts) on service-specific and particularly service-culture-specific (and in my mind the hardest to defend against) details.

    If that isn’t clear, what I mean is that, in the case of a clear violation of code or ethics, an OSJ would be no more biased one way or another than a Same Service Judge (SSJ) would be. If the issue I was accused of was one of those things where common practice differed from what was on the actual statutes (we don’t normally consider driving 58 in a 55mph speed zone immoral) and was unlikely to be understood outside of the particular culture or sub-culture (in the 82nd, we do it this way BECAUSE) then I would really prefer a SSJ, because a OSJ would be more likely to be guided by his understanding of the actual written UCMJ and a fixed code of ethics, and less likely to be persuaded that driving 64 in a 55mph speed zone was the “normal level of accepted risk” that every member of the unit was aware of.

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