28 August 2007

Preemptive Strike?

In United States v. Lacy, NMCCA 200600273 (N.M. Ct. Crim. App. Aug. 21, 2007), the prosecutor challenged the only African-American on the court panel. The defense objected.

The CCA's opinion refers to the Government's challenge to the member as a "preemptive strike" and a "preemptory challenge." The correct term is, of course, peremptory challenge. Preemptive relates to a military strike made so as to gain the advantage when an enemy strike is believed to be imminent. Peremptory means not allowing contradiction or refusal. In other words, a challenge that is granted without giving reason.

I was also struck by the analysis of that challenge.
Following a defense objection to the challenge, the Government factually cited to Petty Officer Riley’s prior legal experience, familiarity with the urinalysis collection program, and the fact that she had been a victim of a theft, identity fraud, and rape. Record at 253. The military judge observed that the reasons offered by the Government were justifications normally applicable to a defense preemptory challenge, but acknowledged that “some of the reasons” were valid, non-Batson type bases for challenge and overruled the defense objection. Id. at 257.

. . . .

In essence, trial counsel’s factual reasons simply cannot be “unreasonable, implausible, or otherwise make no sense.” United States v. Tulloch, 47 M.J. 283, 287 (C.A.A.F. 1997). The rationale must be something more factual than a simple assertion of good faith. Id. at 288.

. . . .

The appellant’s focus on the ultimate quality of the trial counsel’s rationale is misplaced. As we observed in Thomas, one doesn’t have to have a “good reason” for a preemptory challenge, only an honestly held non-racial reason. [United States v. ]Thomas, 40 M.J. [726,] 730[ (N.M.C.M.R. 1994)]. The trial judge had the opportunity to observe and listen to the trial counsel’s explanation. Ultimately, it is the sincerity of the trial counsel’s factual articulation rather than the quality of his rationale that is at issue.

Furthermore, as the defense contends, the judge never decided which if any of the proffered reasons was valid. I doubt this will play well at CAAF. Thomas is no longer the law and hasn't been for the past 10 years since Tulloch.

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