United States v. Chaney

51 M.J. 536, 1999 CCA LEXIS 224, 1999 WL 675317
CourtUnited States Air Force Court of Criminal Appeals
DecidedAugust 25, 1999
DocketACM S29638
StatusPublished
Cited by5 cases

This text of 51 M.J. 536 (United States v. Chaney) is published on Counsel Stack Legal Research, covering United States Air Force Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Chaney, 51 M.J. 536, 1999 CCA LEXIS 224, 1999 WL 675317 (afcca 1999).

Opinion

[538]*538OPINION OF THE COURT

YOUNG, Senior Judge:

The appellant pled guilty to, and was convicted of, wrongfully using amphetamine and/or 3, 4-methylenedioxy methamphetamine (ecstasy) on divers occasions. Article 112a, UCMJ, 10 U.S.C. § 912a. The convening authority approved the sentence the court members adjudged — a bad-conduct discharge, confinement for 2 months, forfeiture of $617 pay per month for 2 months, and reduction to E-l. The appellant asserts two errors: (1) The military judge erred in granting trial counsel’s peremptory challenge against the only female court member; and (2) The staff judge advocate failed to properly perform his post-trial duties. Finding no prejudicial error, we affirm.

I. The Peremptory Challenge

A. Facts

The trial counsel exercised his peremptory challenge against Captain (Capt) Moore, the sole female member of the assembled court panel. Citing J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 146, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994), the defense counsel objected. The defense counsel also noted that Capt Moore had been removed from the same panel convened the day before to hear a different case. The military judge inquired as to the reason for the challenge. The trial counsel stated that he was challenging Capt Moore because she was a nurse. The record is silent as to which party challenged Capt Moore in the previous court-martial and whether that challenge was peremptory or for cause.

The military judge accepted the trial counsel’s reason for the challenge as “a non-gender specific reason.” When the defense counsel suggested that the stated reason could be a pretext, the military judge responded: “I happen to know that — and I’m not agreeing with him — but trial counsels— not these particular trial counsels — as a whole tend to exercise peremptories against med[ical] group folks. But it’s specifically nurses, not male or female.” The defense did not object to this characterization or ask for further clarification.

B. The Law

“[G]ender, like race, is an impermissible basis for the exercise of a peremptory challenge by either the prosecution or a military accused.” United States v. Witham, 47 M.J. 297, 298 (1997) (citing J.E.B.; Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992); United States v. Annigoni, 96 F.3d 1132, 1139 (9th Cir.1996) (en banc)).

The Court of Appeals for the Armed Forces has established a special military methodology for examining allegedly discriminatory peremptory challenges.

(1) When a party peremptorily challenges a court member who is a member of a cognizable group (race/gender), the other party must object and state the basis of the objection. United States v. Moore, 28 M.J. 366, 368 (C.M.A.1989).
(2) The challenging party then must provide a race/gender neutral reason for the challenge. Id.
(3) The military judge “must review the record and weigh trial counsel’s credibility before he makes a factual determination regarding the presence or absence of purposeful discrimination in the panel member’s rejection.” United States v. Greene, 36 M.J. 274, 281 (C.M.A.1993) (citing Hernandez v. New York, 500 U.S. 352, 364-65, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (plurality opinion)). The military judge may not sustain such a challenge if the reason given is “unreasonable, implausible, or ... otherwise makes no sense.” United States v. Tulloch, 47 M.J. 283, 287 (1997).
(4) Because the military judge’s determination of purposeful discrimination is a factual one, largely based on the military judge’s evaluation of the counsel’s credibility, we accord it great deference. We will overturn the military judge’s decision only if it is clearly erroneous. Greene, 36 M.J. at 281 (citing Hernandez, 500 U.S. at 364-65, 111 S.Ct. 1859); United States v. Curtis, 33 M.J. 101, 105 (C.M.A.1991).

C. Discussion

Neither the Supreme Court nor the Court of Appeals for the Armed Forces has ruled [539]*539definitively on occupation-based peremptory challenges. In J.E.B., the Supreme Court briefly mentioned occupation-based challenges as they might impact on impermissible gender-based challenges. First, the Court noted that peremptory challenges based on occupation are different from those based on race because they “do not reinforce the same stereotypes about the group’s competence or predispositions that have been used to prevent them from voting, participating on juries, pursuing their chosen professions, or otherwise contributing to civic life.” J.E.B., 511 U.S. at 142 n. 14, 114 S.Ct. 1419. Second, the Court acknowledged that “strikes based on characteristics that are disproportionately associated with one gender could be appropriate, absent a showing of pretext.” Id. at 143, 114 S.Ct. 1419. The Court used peremptory challenges against all persons who had military experience or were nurses as examples. The former would disproportionately affect men, while the latter would disproportionately affect women. But, the Court concluded that “these challenges may well not be unconstitutional, since they are not gender or race based.” Id. at 143 n. 16, 114 S.Ct. 1419.

Our superior court has discussed occupation-based peremptory challenges, but only in dictum. In United States v. Ruiz, 49 M.J. 340 (1998), the trial counsel challenged the only female member of the panel. The defense counsel cited J.E.B. and asked the military judge to require the prosecutor to provide a gender-neutral reason for the challenge. The military judge declined. The following morning, the appellant again raised the issue. The military judge agreed to read the case when the defense counsel could supply it to him, but, with the consent of the defense, elected to “press” on. The issue was never mentioned again. Ruiz, 49 M.J. at 342-43. The Court of Appeals for the Armed Forces declined to accept the trial counsel’s affidavit explaining his peremptory challenge and remanded the case for a post-trial hearing to make findings of fact and apply the applicable legal standards. Id. at 345.

In writing for the three judge majority in Ruiz, Chief Judge Cox ignored the Supreme Court’s discussion of occupation-based challenges in J.E.B. Instead, he opined that “a peremptory challenge based on a juror’s occupation has been presumed by some to be pretextual on its face.” Ruiz, 49 M.J. at 344 (emphasis added). Chief Judge Cox suggests that occupation-based challenges should be disfavored in the military because the convening authority has selected the members as “best qualified for the duty by reason of their age, education, training, experience, length of service, and judicial temperament.” Id. at 345 (quoting Rule for Courts-Martial (R.C.M.) 502(a)(1)).

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Bluebook (online)
51 M.J. 536, 1999 CCA LEXIS 224, 1999 WL 675317, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-chaney-afcca-1999.