Batson and backroom prosecutors

We at GMJR are closely following the cert petition with the U.S. Supreme Court previously reported here filed by Pedro Bess, a Black U.S. sailor challenging the secretive process of how panel members were selected where he was convicted by an all-white jury of sexual misconduct against white women.  

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).

“I mean, it should happen here”

Missy Ryan of The Washington Post writes here about whether retired Army Lieutenant General Michael T. Flynn will or should be prosecuted for suggesting that a Myanmar-type military coup would be a good idea. "[E]xperts said any case against Flynn would likely be questionable, especially since he quickly disavowed support for overthrowing the government." 

Really? Walking it back promptly may go to the question of remorse or the danger of recidivism, but it doesn't bear on the legal question of whether an offense was committed. Soliciting or advising sedition is, according to ¶ 6.c.(1) of the Manual for Courts-Martial, an "instantaneous offense."

The real drivers are whether General Flynn's comment meets the definition of any offense under the Uniform Code of Military Justice and whether (assuming the exercise of personal jurisdiction over a retiree is constitutional) the public interest is served by making him a martyr or offering him the soapbox of an Article 32 preliminary hearing or a trial. 

On the first of these questions, Article 94(2) provides that a person subject to the Code who, "with intent to cause the overthrow or destruction of lawful civil authority, creates, in concert with any other person, revolt, violence, or other disturbance against that authority is guilty of sedition." General Flynn's comment seems not to satisfy the definition. Under Article 82(b)(2), however, soliciting or advising "another" to commit sedition is also an offense, even if sedition itself never occurs or is attempted. It is at best doubtful that his comment qualifies under this provision. Who was the "other"? Everyone in his audience? Paragraph 6.b.(1) of the Manual requires that the solicitee or advisee be "a certain person or persons" (emphasis added).

General Flynn's comment doesn't come close to violating Article 88, and any effort to shoehorn it into Article 134 would certainly as to clauses 1 and 2 and very likely as to clause 3 bump into the preemption doctrine. See Manual ¶ 91.c.(5)(a) & Discussion. "Novel" or bespoke specifications are clearly risky.

Full disclosure: the Editor is one of the appellee's counsel in a pending case at the U.S. Court of Appeals for the District of Columbia Circuit in which the government seeks reversal of Judge Richard J. Leon's decision that the exercise of court-martial jurisdiction over a member of the Fleet Marine Corps Reserve is unconstitutional.

The WWII era killing of a black soldier by military police

Last week, the Washington Post chronicled the killing of Private Albert King. King was killed by Sergeant Robert Lummus, a military policeman, outside the gates of Fort Benning, Georgia, in March 1941. Lummus was tried by general court-martial the following day, where he was acquitted in a case where the prosecution wasn't trying. A later inquiry found King's killing unjustified and that he was in the line-of-duty, findings that would have entitled his family to death benefits. But that inquiry then changed its conclusions after intervention by higher authorities.

The writer discusses other examples of the unjustified killings of black Soldiers on and around Fort Benning in that era, as well as efforts by those trying to uncover these injustices and, to the limited extent possible, to rectify them with efforts to correct King's military records. One interesting aspect to the article is seeing some historical figures fighting for justice, or others, like a former judge advocate general, choosing to look the other way. The article's choice to focus on the injustice of a singular episode, while putting the incident into it broader historical milieu, reminds one of the struggle for equal rights that continues to the present day.

The Guantánamo Docket

The New York Times has done a major overhaul of its invaluable Guantánamo Docket, making it -- if this is possible -- even more invaluable. Check it out here.

Since 2002, roughly 780 detainees have been held at the American military prison at Guantánamo Bay, Cuba. Now, 40 remain. Of those, 12 are being handled by the military commissions war court — three are facing proposed charges, seven are facing active charges and two have been convicted. In addition, 19 detainees are held in indefinite law-of-war detention and are neither facing tribunal charges nor being recommended for release. And nine are held in law-of-war detention but have been recommended for transfer with security arrangements to another country.

This is an astounding, granular resource. BZ to the Times team that produced it. In the At War newsletter, Carol Rosenberg writes:

In the minds of many people, the roughly 780 men and boys who were held at remote Guantánamo are still nameless, identically clad men locked behind razor wire. Forty remain there today, while the rest have been repatriated or dispersed around the world.

But in the tug of war for transparency there, time does win out.

The latest testament to that can be found in The New York Times’ online database of prisoner profiles called The Guantánamo Docket, which recently underwent not just a redesign but an update of nearly a decade of developments and documents — a herculean effort undertaken during the pandemic by a far-flung group of Times software engineers, editors and journalists.

Decedent without a name

From this report in Haaretz:

“In September 2020, after an investigation by military police, an indictment was filed against an officer that served in the Israel Defense Forces Military Intelligence Corps with the military court.

“The officer was arrested following a decision by the military court and the legal process on the matter had not been decided. On the night between May 16 and 17, 2021, the officer was found at a military detention facility in the center of the country in serious medical condition. The officer was transferred for medical treatment to a hospital, where he was pronounced dead. His family was notified.”

The statement added that “the army’s Internal Investigation Unit opened a probe into the circumstances of his death and upon its completion, its findings will be handed over to the military prosecutor for examination. Hearings in the officer’s case were held behind closed doors and a sweeping gag order was placed on them. An additional gag order was issued on the Internal Investigation Unit’s probe into the circumstances of his death.”

More information will presumably emerge about this case.