An Overview of How Military Juries are Selected

Posted by Michael E. Lyons | Feb 02, 2018

Coast Guard Rape Conviction Overturned for Too Many Women on the Jury     

Through some recent media coverage, you may have heard about a recent court decision overturning a Coast Guard rape conviction for “jury stacking.” The jury was predominately female, included multiple sexual assault victim advocates, and convicted a Coast Guard member of rape on evidence ultimately found to fall below the required standard of proof. The decision to overturn that conviction has shed some light on military juries and how they are picked. While there are many similarities, military juries are unlike civilian juries in a few important ways.

In a court-martial, jurors are called “court members.”   When a military member is facing a court martial, a jury is selected by the Convening Authority, who is a commander in the accused's chain of command.  The Convening Authority who hand-picks the jury is the same commander who referred the charges to trial after the investigation was completed, and after receiving advice from the Staff Judge Advocate.  The Convening Authority can select members from the entire command. How a commander goes about choosing court members will vary by location and service.  However, all Convening Authorities are guided by Article 25 of the Uniform Code of Military Justice (UCMJ).  Article 25 provides that the potential court members should be the best qualified officers selected on age, education, training, experience, length of service, and judicial temperament.  While those are the basics, there are some other criteria, for instance an enlisted accused can elect to have enlisted members on the jury.

If a servicemember is facing a general court martial (the equivalent to a felony where prison sentences can be above one year) there must be at least five court members.  In a special court martial (where the maximum prison term is one year) there must be at least three members.  This is a far cry from the 12 jury members that most civilian jurisdictions require. The guidelines for the number of court members in the military refer to the minimum number and there is no maximum.  In the case that was recently overturned, it was a general court martial and there were ten members selected by the Convening Authority to start the trial.

To ensure that at least the minimum number of members will ultimately sit on the jury in the court-martial after excusals, more servicemembers are usually selected to go through jury selection, called “voir dire.”  During voir dire, the potential court members are asked questions intended to elicit any bias or conflicts of interest that may exist.  Both the prosecution and defense are generally permitted to ask questions of the potential jurors after the military judge covers some preliminary questions.  The members are usually questioned as a group and then some are called back individually for what might be more sensitive questions.

After all questions are answered, challenges from either side may be brought “for cause.”  The prosecution or defense will argue to the military judge that a particular member should not remain on the jury because of an “implied bias” or “actual bias.”  If a member has stated they cannot be fair in this particular court martial because they know the victim and have already determined that a crime has been committed, for example, they are showing actual bias and they will be excused.  If, by contrast, a member (like many in the Coast Guard case) have acted as a victim advocate yet were still selected by the Convening Authority to sit on a sexual assault trial, the defense counsel would likely have a successful challenge for implied bias, or so you would think. For example, even if such a juror claims that she could be fair and impartial in a sexual assault trial, the defense would argue that her work with victims of sexual assault would influence her judgment, and therefore she should be removed for cause.  After the challenges for cause, each side has the right to exercise a peremptory challenge, excusing a member without having to prove cause.  There are very few restrictions on this, although a member may not be excused through a peremptory challenge based solely on his or her race.

Gender plays no role in the selection criteria or the process.  It is not a permissible reason for being selected for a jury or being excused from one.  There are narrow exceptions for this, for example, a female accused may be entitled to female jury members, but gender is not intended to be a selection criterion.

In the Coast Guard case, 70% of the ultimate jury pool that sat through voir dire in the courtroom were female.   The appeals court that ultimately dismissed the charges against the accused in the Coast Guard case found no “conceivable, rational, or logical reason” for the high number of selected women.  They concluded that whether conscious or unconscious it was likely in response to “intense external pressure to do more about preventing and responding to sexual assaults.”  Making the 70% female representation even more obviously intentional is that the potential jurors were selected from a pool consisting of only 20% females in the officer pool, and 13% female in the enlisted pool.  On top of that statistical anomaly, five of the seven women were victim advocates.    A victim advocate is trained to work directly with victims of rape and sexual assault, providing comfort, counseling and various forms of support.  A large part of that training focuses on helping the victim feel believed and in ways to avoid sounding judgmental or suspicious of stories that may not seem to make sense.  Additionally, some of the training is focused on recognizing counter-intuitive victim behavior; something a prosecutor is likely to rely on in rape cases. This training and the subsequent work with victims provides a strong argument for the defense counsel to have that juror excused under the theory of implied bias.

In the Coast Guard case, over half of the defendant's final seven court members were trained victim advocates, four of the five women. This fact should have raised red flags.  They should have been excused.  After a series of trial errors and appeals, the United States Court of Appeals for the Armed Forces eventually found the obvious fault in the process. The court, in discussing the various levels at where this injustice should have been handled called the failure to fix this problem earlier a “stain on the military justice system.”

The court went on to further warn that accused servicemembers must be protected from Unlawful Command Influence at all levels, calling military judges “sentinels” of the military justice system, there to stop UCI at the trial level, not passing the buck assuming it will be addressed on appeal.

Hopefully this case will serve as a warning shot across the bow to Convening Authorities, their SJAs, and the prosecutors that this type of jury stacking will not be tolerated.  When a military member is tried at a court martial it is already the United States versus one person, there is no need to further stack the deck. Every servicemember, every citizen, everyone, deserves a fair trial when accused of a crime.

Read the full decision here: U.S. v. John C. Riesbeck

Read more about military juries here: Jury of 12? Jury of my peers?

DISCLAIMER:  The information above is for general informational purposes only.  No attorney-client relationship is intended or created by this information.  Each individual situation is different and therefore a formal in-person consultation is necessary before any specific advice may be relied upon as appropriate and accurate for a given situation. Please call Patriots Law Group at 301-952-9000 to set up a consultation if you wish to obtain specific legal advice you may rely upon. We serve clients anywhere in the world, with in-person consultations available at our Suitland, MD office — right next to Andrews Air Force Base — for clients in Maryland, Virginia, and Washington, D.C. 

About the Author

Michael E. Lyons

“As a veteran, I bring my core values of service, integrity, and excellence to every client, every case, every time.” Background: Michael E. Lyons (“Mike”) handles cases in Maryland and Washington D.C. fr...