Jeter gets a new trial, and 59 years after Crawford was decided and 36 years after Batson was decided, Crawford is overruled. CAAF rejects the notion in Crawford that the inclusion of a prospective member because of their race or gender is OK because it favors the accused. The opinion is straightforward. Although Judge Maggs dissented.
"We hold that to the extent Crawford allows a convening authority to depart from the factors present in Article 25(d)(2), UCMJ, by seeking, even in good faith, to use race as a criterion for selection in order to make the members panel more representative of the accused’s race, it has been abrogated by Batson, 476 U.S. 79."
The teaching moment, however, comes at the end of the majority opinion.
Over the years, the defense has sought discovery of the member selection process. Depending on the jurisdiction or trial counsel, that discovery has been denied or resisted, sometimes with the judicial imprimatur. It seems odd that the members' selection process should be cloaked from public view, let alone from the defense.
As a final matter, much of the information concerning the selection process in this case came to light during its lengthy appellate review. True, the trial defense team was presented the opportunity to pursue more evidence to support its claim of purposeful exclusion but chose not to avail themselves of this opportunity. To be fair, however, neither the trial participants nor the lower court could have anticipated our conclusion that Crawford is abrogated, thereby changing the legal landscape. Going forward, it is our hope that trial participants will understand that many of the questions that arose in this case might have been resolved through detailed discovery requests and generous government responses to such requests.
Judge Maggs points out that in his view the court has answered the wrong question. The real question was not about the selection process but about whether, on the evidence available, the defense met its burden.
The precise question at issue is whether Appellant has shown, either by affirmative evidence in the record or through unrebutted evidentiary presumptions, that racial discrimination occurred in this case. For the reasons explained below, I agree with both the NMCCA and the military judge that Appellant has not established that the convening authority acted improperly. I therefore respectfully dissent from the Court’s judgment setting aside the findings and sentence in this case.
Judge Maggs then holds the second teaching moment for what should happen or be shown once the discovery is received.
Disclaimer: Posts are the authors' personal opinions and do not reflect the position of any organization or government agency.
-Current Term Opinions
Joint R. App. Pro.
Army Crim. L. Deskbook