Wednesday, June 30, 2021
Military service exemption in Colombia
Tuesday, June 29, 2021
UN discussion on sexual exploitation and abuse in the military
South Africa, acknowledged by the UN for adoption of best practices to deal with sexual abuse and exploitation (SEA) in its military, was one of 80 countries along with the European Union which heard misconduct by soldiers was a risk to operational successes of peacekeeping missions.
The UN event on Monday heard of and saw good practices member countries are implementing to cut down and hopefully eliminate SEA. One presentation to the closed event was that of a South African court martial for a SEA offence. Ahead of the event, South Africa’s progressive approach to dealing with SEA in the SA National Defence Force (SANDF) both internally and on external deployments such as MONUSCO in DR Congo was acknowledged by the world body.
Monday, June 28, 2021
March to Justice: Global Military Law Landmarks
An important essay by HHJ Alan Large
The Editor is grateful to both the JAG and The Commonwealth Magistrates' and Judges' Association for permission to make it available to readers of Global Military Justice Reform.
© The Commonwealth Magistrates and Judges Association, 2021. Reprinted, with permission, from the June 2021 issue of the Commonwealth Judicial Journal, cited to (2021) 25 Com. Jud. J. 14.
Was Briggs correctly decided?
If nothing turned on how the Court answered the question presented, the Justices might well have reasoned that rape carried a five-year statute of limitations. That is the more persuasive interpretation of the statutory text. But something turned on the resolution of the issue: the convictions of three rapists that the Justices likely wanted to see punished. We can thus conclude that when the Court wishes to reach a particular result in a statutory interpretation case, it reaches that result. And therefore, when the Court issues what appears to be a disturbing opinion in a statutory interpretation case, there too, it has reached the result that it wanted to reach. They can no longer don the T-shirt that says “The Statute Made Me Do It.”
Sunday, June 27, 2021
For your military justice bookshelf
Gallagher said he considered the potential pain the procedure could cause the prisoner before allowing Victor [another SEAL] to attempt it. And he said he didn't have concerns about allowing Victor, who was not a medic, to try it, because there were two other medics by his side assisting and instructing him.
[Gary D.] Solis, a former Marine judge advocate, believes this action amounted to a confession of a war crime. The Geneva Conventions prohibit prisoners of war from being subjected to "medical or scientific experiments" that are not justified by the prisoner's medical needs, or carried out in his interest.
Solis also feels Gallagher's prosecutors badly bungled the case.
"Gallagher's 'medical treatment' of his prisoner constituted a grave breach of 1949 Geneva Convention I, Article 50, causing great suffering or serious bodily injury," he said in an email. "This includes 'exposure to useless and unnecessary suffering.' Though acquitted, Gallagher is a war criminal. I know an incompetent prosecution when I see it."
Gallagher denied that he or his platoon violated any laws of war by conducting the IO infusion, which was done at least in part to train Victor.
"It was being carried out in [the prisoner's] interest," he said. "He just happened to be dead at the time, or on his way out five to 10 seconds after [Victor] administered the IO. Every procedure that was done to him was valid, besides the [second] chest tube, which I don't know if that needed to be done or not. But every other procedure was valid."
The Geneva Convention provision referred to by LtCol Solis states:
Art. 50. Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.
Saturday, June 26, 2021
CO acquittal in ROK
“The defendant’s convictions and faith are deeply established and have formed a clear identity. He appears to have refused military service based on his genuine conscience,” the court concluded.
Thursday, June 24, 2021
Commander Merle Smith, groundbreaking Coast Guard judge advocate, has died
Commander Smith was one of the Coast Guard's first Black law specialists, as the service's judge advocates were previously called:
After returning from Vietnam, [Commander Smith] served a number of years at Coast Guard Headquarters. During this period he spent two-and-a-half years on the international affairs staff, attended and graduated law school at George Washington University and served as deputy chief of the Chief Counsel’s Office of Military Justice. In 1975, he was assigned to the law faculty at the Coast Guard Academy, where he also helped coach football and served as Class Advisor for the Class of 1977. He was promoted to Commander in 1981 and left active duty in 1984.
COVID-19 and military justice (Uganda)
The decision is in line with the new COVID-19 preventive measures announced by President Yoweri Museveni last week to contain the second wave of the pandemic which has seen a spike in infections.
In his televised address, Museveni directed all government ministries, agencies and departments to scale down their staff to 10 percent as part of the COVID-19 containment measures. Lt Col. John Bizimana, the registrar at the General Court-Martial says that unlike the past lockdown when they continued working, this time around, they have decided to halt their operations but will remain on standby in case any new matter comes up.
Wednesday, June 23, 2021
Military Justice Reform Sourcebook for Legislators and Journalists (June 2021)
Keep it simple
1. Airmen need to trust the military justice system and Air Force commanders.
2. This applies to sexual assault and harassment in violation of the Uniform Code of Military Justice.
3. Any changes in the law relating to who is responsible for deciding whether to prosecute such offenses and taking other punitive measures must be clear.
Monday, June 21, 2021
Court-martial of civilians in Taiwan (ROC)
The Transitional Justice Commission last week overturned the guilty verdict of a former mechanic court-martialed 47 years ago, saying that the original ruling contravened the principles of criminal law.
Chen Wen-chiung was court-martialed in 1974 for insulting a commanding officer, which at that time contravened Article 75 of the Criminal Code of the Armed Forces, and was sentenced to less than three years in prison. The act has since been amended, moving such an offense to a different article.
During the review, Chen told the commission that he was employed as a mechanic at the Joint Logistics Command’s Factory 44, and although considered a subordinate of the factory commander, he was not serving in the military.
A riposte to arguments against U.S. military justice reform
Fact: Military commanders do not require prosecutorial discretion over serious criminal offenses by their service members in order to ensure good order and discipline within their units.
Fact: The vast majority of U.S. military commanders – officers vested with formal responsibility for particular groupings of service members in the military’s hierarchy – do not possess prosecutorial authority over serious crimes. There are approximately 14,500 military commanders (according to the most recently available data). Only roughly 400 have the power to convene courts-martial for serious crimes, and of those, approximately only 140 actually use that power: so less than one percent of all military commanders criminally prosecute (court-martial) service members for serious offenses.
Fact: Court-martialing Black service members at a rate twice that of their white counterparts is a broken system in need of repair. Period.
dFact: Sens. Gillibrand and Ernst’s proposal contemplates a streamlined version of the current system that is more efficient and reduces the current need for staffing required for commanders with prosecutorial discretion. Why Mr. Johnson does not at least engage in that well-known fact is puzzling. As for Guantanamo, the Military Commissions have been a tragic failure, indeed, but by almost all accounts due to evidentiary and due process issues related to torture allegations used to extract confessions; the refusal by the government to share classified information; along with hampered access to defense counsel and a merry-go-round of judges. The claim that the current proposal will result in similar failure is simply another scare tactic by those wedded to the status quo. Indeed, it is such a poor analogy that it calls into question the soundness of the opposition more generally and the rhetorical tactics used to make their case.
Sunday, June 20, 2021
That train crash in Colombia
The Court indicated that the military criminal jurisdiction "only applies to crimes committed by members of the Public Force on active duty and in relation to the same service," so the direct, close and immediate link of origin must be found between the activity of service and crime. The high court said that the evidence provided by the Police does not show with "the required clarity" that [the Mobile Anti-Disturbance Squadron, or riot police] Esmad's reaction, in that case, was undertaken to counteract a demonstration that had acquired a violent character.
In addition, it pointed out that there are sufficient elements of judgment that lead to consider that in Dilan [Cruz]'s death there was some disproportionate and excessive use of force in trying to control a peaceful protest, that is why the death of the young man is configured under the prima facie concept as violation of human rights. That is, it could be considered as such in principle.
The decision is not yet on the court's website.
Saturday, June 19, 2021
Extremism in the Bundeswehr
here in The New York Times about the recall of a Bundeswehr unit from duty in Lithuania. The reasons include alleged criminal acts as well as extremism. What criminal and administrative sanctions will follow, and what other steps will be taken to root out extremism? This is an emerging story, with potential lessons for other countries.
New York Times editorial board weighs in on the Gillibrand bill
While sexual assault is the focus of the reform push, supporters of Ms. [Kirsten E.] Gillibrand’s proposal say that reforming the military justice system more broadly will make it fairer and less prone to bias — and help address existing racial disparities in prosecutions and convictions. They warn that singling out sexual assault would establish a “pink court,” effectively creating a two-tiered justice system and further stigmatizing victims.
Advocates also point out that many U.S. allies, including Israel, Britain and Canada, have already made similar changes to their military justice systems.
Military justice and civilian blogging
Indicating that the post published by the blogger in question, whatever its content, does not amount to a “military crime” because the young man did not target the military institution and that he It is in no way possible to attribute the military function to the Head of State, who represents the civil authority par excellence to which the armed forces of any democratic State are subject.
"I accuse the President of the Republic of involving military justice in specialties beyond his competence" he insisted.
"I accuse the Military Prosecutor's Office of having derogated from the law and of having deviated from its constitutional powers to the pleasure of certain political parties". he added.
Friday, June 18, 2021
Cameroonian military justice explained
Thursday, June 17, 2021
Train crash in Colombia
Train crash between the Prosecutor's Office and Military Criminal Justice for alleged police violence
Investigations of police officers for violence against protesters are generating a confrontation between the Prosecutor's Office and Military Criminal Justice.
The attorney general, Francisco Barbosa, ordered an investigation into Military Investigating Judge 188, a decision that generated enormous surprise among Military Criminal Justice officials, who expressed fear of possible judicial persecution. Military Criminal Justice sources explained that the power to investigate the judges belongs to the Military Superior Court and not to the Prosecutor's Office, which in this case would be exceeding its limits.
The judge is being investigated because in principle he had taken up the case against a police officer implicated in the death of the young Santiago Andrés Murillo, which occurred on May 1 in Ibagué, a case that is now being claimed by the Prosecutor's Office.
Watch this space.
Stand by for a challenge to Jamaica's military justice system
The Defence Act still prescribes a classic pre-Findlay system. No military judge; convening and confirming authorities; court-martial members selected by the commander -- "the whole nine yards." Non-capital courts-martial are subject to appellate review by leave of the Court of Appeal. The challenge in the current case will rest on § 16.1 of the Constitution of Jamaica, which provides:
Whenever any person is charged with a criminal offence he shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.
Wednesday, June 16, 2021
Push for reform in Seoul
here on a current proposal to reform the South Korean military justice system. It seems to have broad support. Reform proposals have fizzled over the past 17 years, but now the Defense Ministry may be supportive. Excerpt:
Under the bill, commanders would no longer have the power to commute sentences or exert any authority over the military prosecutors at the bases they oversee. Military prosecutors would have to report to the defense minister or their respective armed forces chiefs instead.
Commanders who oversee military courts handling first trials would no longer be able to appoint judges; the defense minister would fill that role.
Tuesday, June 15, 2021
Sen. Gillibrand on WNYC's Brian Lehrer Show
Monday, June 14, 2021
Court Martial Appeal Court of Canada - R v Edwards, et al., 2021 CMAC 2
R v Edwards, et al., 2021 CMAC 2
In a unanimous decision, the Court granted the appeals by the Minister of National Defence (represented by the Director of Military Prosecutions) and dismissed the cross-appeal by the accused in R v Crépeau, CMAC-607.
The Court rejected the conclusions by military judges that the Military Judges Inquiry Committee (MJIC) constituted a separate disciplinary system that displaced the Code of Service Discipline. The Court ultimately held that, in the unique context of the military justice system - a system established to promote the discipline, efficiency, and morale of the armed forces of Canada raised by Her Majesty - a reasonable and "... informed person, viewing the matter realistically and practically—and having thought the matter through could ... reach no other conclusion than [that] military judges meet the minimum constitutional norms of impartiality and independence as required by section 11(d) of the Charter."
Consequently, the CMACC held that military judges are subject to the Code of Service Discipline while they hold office and the impugned order issued by the Chief of the Defence Staff (which placed military judges under the disciplinary authority of senior officers) does not compromise the rights of an accused, tried by court martial, to a trial before an independent and impartial tribunal, under section 11(d) of the Charter.
This judgment is relatively recent. There is no indication whether any of the accused will seek leave to appeal before the Supreme Court of Canada (SCC). However, as the judgment is unanimous, if one or more of the accused wished to appeal the CMACC judgment, they would have to seek leave from the SCC. In these circumstances, there is no automatic right of appeal - although the SCC clearly has the jurisdiction to hear an appeal.
The Court also dismissed, on relatively cursory analysis, the Defence motions to adduce new evidence on appeal, holding that it would have no bearing on the merits of the appeal.
There will undoubtedly be further analysis and commentary regarding this judgment.
Ultimately, to paraphrase the immortal words of Samuel Clemens: "Rumours of the death of the Code of Service Discipline have been greatly exaggerated." This judgment has, in effect, reinforced the viability of the military justice system.
Sunday, June 13, 2021
Chinese legislation forbidding slander or demeaning the honor of military personnel
Article 32: The honor and reputation of military personnel shall be protected by law.
The honor obtained by a soldier shall be enjoyed by him for life, and shall not be revoked except for statutory reasons or procedures.
No organization or individual may in any way slander or demean the honor of soldiers, insult or slander the honor of soldiers, and must not intentionally damage or defile the awards of soldiers.
Recently, a popular Chinese blogger was sentenced to eight months in jail under the existing law for “defaming” People’s Liberation Army (PLA) soldiers killed in last year's clash with the Indian Army at the Galwan Valley in eastern Ladakh.Qiu Ziming, who had over 2.5 million followers, was also ordered to publicly apologise through major domestic portals and the national media within 10 days to eliminate the negative impact.While the Indian Army announced that 20 of its personnel were killed in the clash on June 15 last year just a few days after the face-off, the Chinese PLA took nearly eight months to acknowledge that it had suffered casualties during the incident and revealed that it had lost four of its military personnel.Prosecutors can file PIL for defaming Chinese armyThe new law allows prosecutors to file public interest litigation in cases of defamation of military personnel and the infringement on their legitimate rights and interests that have seriously affected their performance of duties and missions and damaged the public interests of society. It also bans the desecration of plaques in honour of military personnel.Song Zhongping, a former PLA instructor and Hong Kong-based military affairs commentator said the legislation which also covers families of service personnel was meant to bolster the military personnel’s sense of mission.“Previously, our legal instruments were not complete and this new law will provide more comprehensive protection for the rights and honours of our [troops].
Where should this Chilean case be tried?
The Supreme Court settled the dispute of jurisdiction between the Third Military Court, based in Valdivia, and the Yumbel Guarantee Court in a case in which the death of a first corporal of the Carabineros is investigated, who died after being found with a shot to the head, inside a bathroom at the Centinela Retention, a detachment dependent on the Fifth Police Station of Yumbel, on August 17 of last year.
In a divided ruling (case roll 21.903-2021), the Second Chamber of the highest court - made up of the ministers Manuel Antonio Valderrama, Leopoldo Llanos, María Teresa Letelier, Jorge Zepeda and the lawyer (i) Leonor Etcheberry - established that the knowledge of the process It will correspond to the ordinary justice and not to the military, since there is an indirect civil victim in the case, the minor son of the deceased.
"That the facts investigated, according to the accompanying antecedents, show that in a Carabineros compound an official of that police, at the end of his patrol shift, was found in the bathroom of the police unit, with a bullet impact in the head but with signs of life and that, transferred to a health center in serious condition, he died around 9:15 p.m., without any indication of civilian participation in the act, ”the ruling maintains.
The resolution adds: “That in relation to the prosecution of common crimes committed by personnel with military jurisdiction, the latest legal modifications to specialized military justice, following a trend that had been emerging since 1990, have been aimed at significantly restricting the jurisdiction of the military courts. Indeed, Article 1 of Law No. 20,477 of December 30, 2010, amended by Law 20,968, of November 22, 2016, in force at the time of the commission of the facts, provides: 'Restriction of the jurisdiction of military courts. In no case, civilians and minors, will be subject to the jurisdiction of the military courts. This will always be established in the ordinary courts with competence in criminal matters. For these purposes, it will be understood that a civilian is a person who does not have the status of a military man, according to article 6 of the Code of Military Justice . Thus, the jurisdiction was first established in the Ordinary Courts, excluding from the military judiciary any cause in which a civilian has been involved, either as a defendant or victim and minors, even when the perpetrator had military jurisdiction ( SCS Case No. 8055-2017; Case No. 8056-2017; Case No. 8140-2017, Case No. 19061-17 and Case No. 38.680-17) ”.
"That, consequently, despite the fact that the investigated events occurred inside a military compound, given that one of the indirect victims is a minor, it is appropriate for the matter to be heard by the Ordinary Courts," it orders.
Therefore, it is resolved that: "it is declared that the Yumbel Guarantee Court is competent to hear this matter, which must continue with its processing in accordance with the procedure contemplated in the Criminal Procedure Code."
Decision adopted with the votes against by Ministers Valderrama and Letelier.
There is a link to the decision itself at the foot of this page. Incidentally, is there an issue about adjudicating any case involving gendarmerie or constabulary members in military courts? This has been a concern elsewhere, e.g., in connection with Spain's Guardia Civil.
Saturday, June 12, 2021
Slow-rolling in Pakistan
Friday, June 11, 2021
Another view of Gen. Flynn's issues
this view in their personal capacities. Comments welcome (real names only, as always).
Thursday, June 10, 2021
Friction between the General Council of the Judiciary and the Spanish Supreme Court
The Spanish Supreme Court annulled the appointment of a female judge in a military court in Valladolid. The justices complained that the General Council of the Judiciary (photo) did not take into consideration a report from her superior that affirmed that she was not qualified for the post. The Supreme Court annulled her appointment despite the fact that she had been approved two years ago by the General Council.
This is the third time the Supreme Court has annulled a judicial appointment for a military court. The judges of the contentious-administrative chamber of the Supreme Court studied the case of Captain Maria Paz Rodriguez, who was appointed judge by the plenary of the General Council in March 2019. The vote was very close between Rodriguez and another candidate for the position that had been vacant for two years. The Supreme Court annulled the appointment after having detected a deficiency in the proceedings. Neither the plenary nor the permanent commission of the General Council had analyzed thoroughly the reports regarding her qualifications, and both the Central Military Court and her then superior had affirmed that she had neither the background nor the aptitude for the position. The Supreme Court reproached the General Council for not investigating the reasons for these negative reports.
The upshot is that the General Council must begin the nomination process all over again since the judgment rendered by the Supreme Court must be executed, it is not a question of simply changing the appointment. The Court gave the General Council two months to put in place the proceedings and to make a new nomination, just as it had been required to do in April when it annulled the appointments of two other judges for the 5th Chamber, which concerns military jurisdiction, of the Supreme Court. In the earlier annulments, the Supreme Court criticized the General Council's failure to request certain reports. After the proceedings were carried out following the Supreme Court's judgment, the same two judges were reappointed by the General Council.
Military justice reform, "pink courts," and unit cohesion
[E]ven though men as well as women in uniform are victims of sexual assault, public concern has chiefly focused on the women. It is concern over them and their willingness to come forward without fear of retaliation that has given the reform issue such potency. As a practical matter, if a parallel system is created for the disposition of sex offenses, that system will be understood as having been created chiefly for the benefit of women in uniform. Congress will, in effect, have created “pink courts” — courts for women.
Creating “pink courts” will destroy unit cohesion. It is difficult to imagine a surer way of turning back the clock on all the progress our country has made in integrating women in uniform, including opening occupational specialties, admission to the service academies, qualification as pilots of warplanes and commanders of naval ships and Coast Guard cutters, and promotion to flag and general officer ranks.
In this connection, on June 7, 2021, Justice Sotomayor, joined by Justices Breyer and Kavanaugh, noted the following in a statement respecting the denial of certiorari in National Coalition for Men v. Selective Service System: No. 20-928:
Beginning in 1991, thousands of women have served with distinction in a wide range of combat roles, from operating military aircraft and naval vessels to participating in boots-on-the-ground infantry missions. See Brief for Modern Military Association of America et al. as Amici Curiae 11–18. Women have passed the military’s demanding tests to become U. S. Army Rangers, Navy SEALs, and Green Berets. See Brief for General Michael Hayden et al. as Amici Curiae 11–13. As of 2015, there are no longer any positions in the United States Armed Forces closed to women. See Memorandum from Secretary of Defense to Secretaries of the Military Departments et al. Re: Implementation Guidance for the Full Integration of Women in the Armed Forces 1 (Dec. 3, 2015).
Court orders ignored in Nigerian officers' cases
A death in Korea. Will reforms follow?
Lee's case triggered calls for an amendment of the Military Court Act, which activists say hampers the independence and fairness of criminal investigations because commanders oversee military prosecutors and courts.
The law also allows military chiefs to reduce sentences by up to a third, and that often results in lighter penalties for sexual abusers, the activists say.
Members of parliament's legislation and judiciary committee discussed on Thursday an early passage of a pending bill for revising the law to dilute commanders' power, including removing their authority to reduce sentences.
The proposal also calls for limiting military courts to first trials and transferring appeals to civilian courts.
* * *
"In order to enhance the military judiciary system's credibility, the influence of commanders over the procedure of criminal cases, reform should be taken to ensure the independence and fairness of investigations and trials," [Defense Minister] Suh [Wook] told the [parliament's legislation and judiciary] committee.
Any of this sound familiar?
Wednesday, June 9, 2021
20th edition of CAAF Rules Guide
The authors invite readers to send along suggestions for the 21st edition. What have we missed?
An odd conflict of interest issue
A lawyer appointed by the High Court to defend soldiers charged with the murder of Lieutenant General Maaparankoe Mahao has been withdrawn after it became clear (emphasis added) he was conflicted.
The High Court withdrew Advocate Thulo Hoeane's appointment to appear pro deo, which is legal work undertaken without charge, for Corporals Molefi Seitlheko and Marasi ''Moleli yesterday.
It was after the court learnt that Advocate Hoeane prosecuted the two soldiers in the Court Martial for the same case he was about to defend. It also learnt that Advocate Hoeane wrote a column in a local newspaper condemning the soldiers.
[Advocate Hoene] said he took a principled decision to accept the appointment as he already has two other clients in the same case, Corporal Motšoane Machai and Sergeant Motsamai Fako. ''So, it won''t take (much of) the court's time to begin the trial,'' Advocate Mafaesa said.
(Note. On the facts, it would appear immediately clear that there was a conflict of interest.)
A short Amnesty International piece (from June 2016) suggests,
Authorities must ensure that the criminal investigation into the killing of Lieutenant-General Maaparankoe Mahao by members of the Lesotho Defence Force (LDF) is thorough and pursued vigorously without undue delay, said Amnesty International today on the first anniversary of his unlawful killing.
Lieutenant-General Maaparankoe Mahao was killed on 25 June 2015 by members of LDF who claimed that he was resisting arrest outside Maseru.
However, the (SADC) Commission of Inquiry report into his killing, which was tabled in Parliament on 8 February, found that he had not resisted arrest and his death involved excessive use of force.
He was accused of leading a number of soldiers in a mutiny plot.
The SADC report has also dismissed mutiny claims, finding that “the involvement of Lieutenant-General Mahao on the alleged mutiny plot remains doubtful as there was no evidence to prove his involvement.”
Dozens of soldiers were arrested in connection with the alleged mutiny and 16 of them are still detained at the Maseru Maximum Security Prison.
Lesotho Times has a summary here.Amnesty International has a little more here.
Here's a pretty kettle of fish
Tuesday, June 8, 2021
Misuse of military justice
Is this what the military justice system was created for? It may be constitutional, but is it right?
Defamation trial opens in Australia
Monday, June 7, 2021
Want to know what it means to have a noncompliant system?
Dawn has this account of the case.
Gag order under review at the Kirya
Town Hall 16 video
What's Up In Canada (The Third Independent Review and More) -- Town Hall 16 at 0900 today
Meeting ID: 897 6270 0036
One tap mobile
+13017158592,,89762700036#,,,,*083301# US (Washington DC)
+13126266799,,89762700036#,,,,*083301# US (Chicago)
Saturday, June 5, 2021
Batson and backroom prosecutors
The government has now filed its response and Bess filed his reply.
Noteworthy from Bess's reply brief:
Peremptory challenges pose a danger of permitting “‘those to discriminate who are of a mind to discriminate.’” But at least they occur in a courtroom. CAs [convening authorities] can exclude Black members behind closed doors before the public, the accused, or the judge see the venire. The CA’s actions are more permissive of discriminatory intent—and thus more dangerous.
Building on this point, it is helpful to further draw out differences between "public prosecutors" (trial counsel) and "backroom prosecutors" (CAs). Some pertinent distinctions:
- Public prosecutors are lawyers. Backroom prosecutors usually are not.
- Public prosecutors are subject to codes of professional ethics. Backroom prosecutors are not.
- Public prosecutors make peremptory challenges in the presence of a judge, defense counsel, the public, and on a verbatim record. Backroom prosecutors make peremptory challenges in secret.
- Public prosecutors are permitted a limited number of peremptory challenges. Backroom prosecutors make an unlimited number of peremptory challenges -- they personally select every member of the jury, a process that also involves not selecting other qualified candidates.
- Public prosecutors are subject to having their peremptory challenges contested and reviewed. Backroom prosecutors, who are high-ranking officers, are afforded great deference and rarely are required to testify about how they made their jury selection decisions.
- Public prosecutors prosecute cases assigned to them. Backroom prosecutors personally select which cases and charges will be tried. This selection occurs at the same time they select jurors for a case.
In Bess, CAAF split 3-2 in deciding that Batson is not applicable to backroom prosecutors. Yet CAAF never addressed the more important question raised above: because of the backroom prosecutor's greater potential for unchecked racial bias in jury selection, what measures should be required that are even stronger than Batson?
CAAF missed this opportunity. Since the sentinel court of military justice blocked further inquiry into the questionable acts of a backroom prosecutor, only the U.S. Supreme Court now can enforce its requirement that military members, like all other Americans, are entitled to “a criminal trial free of racial discrimination in the jury selection process.” Flowers v. Mississippi, 139 S. Ct. 2228, 2242 (2019).