How do you challenge members of court-martial panels for bias and what is the “liberal grant mandate”?
A court-martial panel is not a panel of randomly selected military members. The commander, the same commander that sends an accused to a court-martial, hand selects the panel members. This can seem a little unfair to the servicemember being tried at the court-martial. However, the military justice system allows an accused to request the excusal of certain panel members after they have answered questions about their beliefs either on paper or during a verbal interview conducted by the military judge and/or the attorneys (“voir dire”). Both the defense and the government are allowed to request that one court-martial panel member be excused based on a preemptory challenge, which means that no reason must be provided for the request. The only limit to a preemptory challenge is that neither party should request the excusal of a court-martial member based on a discriminatory reason (i.e., race or gender). In addition to this one preemptory challenge that can be used against a court-martial panel member, both parties can raise challenges for cause. A challenge for cause is different than a preemptory challenge. In raising a challenge for cause, the requesting party must show that the court-martial panel member demonstrated “actual bias” or “implied bias” during voir dire or on the written questionnaire. Following arguments from the attorneys for both sides and possibly an individual voir dire of the challenged panel member, the military judge will decide whether the challenge request for cause should be granted or not. Due to the fact that the commander hand selects the panel members for the court-martials, military appellate courts have determined that there should be a “liberal grant mandate.” This means that a military judge should be liberal in granting challenges for cause based on a request from an accused. However, this does not mean that the military judge must grant all challenges for cause raised by the accused. The accused through his or her defense counsel must clearly demonstrate that actual or implied bias exists. Recently, the Court of Appeals for the Armed Forces (CAAF) has decided to review an issue regarding a challenge for cause. In U.S. v. Woods, a Navy-Marine Court of Criminal Appeals case (NMCCA), the senior member of the court-martial panel in her written questionnaire essentially stated that the military justice system was different because servicemembers are held to a higher standard and therefore “you are guilty until proven innocent.” Obviously, this panel member was incorrect. The standard in the military, like in the civilian justice system is that an accused is innocent until proven guilty. The defense in U.S. v. Woods, challenged this panel member for cause. The military judge conducted an individual voir dire with her and determined that based on her responses, there was no actual or implied bias. The judge therefore did not grant the challenge for cause. There may be a valid defense argument that the military judge in this court-martial did not abide by the “liberal grant mandate.” While the NMCCA upheld the military judge’s decision to not grant the challenge for cause, CAAF may see if differently on appeal. This case will be reviewed by CAAF this Monday. A military court-martial panel is hand selected by the command and can find a servicemember guilty with only two-thirds of the vote. For this reason, it is important to make sure the right people are sitting on your court-martial panel. Voir dire, preemptory challenges and challenges for cause are very important to an accused. If you or your loved one is facing a court-martial, you need someone with experience to conduct the voir dire of the panel and advise you on what panel members to challenge. I have this experience. Don’t put your trial in the hands of just anyone. Call today. To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.