

   
   
   
   U.S. v. Chaney



IN THE CASE OF
UNITED STATES, Appellee
v.
Eddie L. CHANEY, Senior Airman
U.S. Air Force, Appellant
 
No. 00-0109
Crim. App. No. S29638
 
United States Court of Appeals
for the Armed Forces
Argued *July
10, 2000
Decided August 25, 2000
EFFRON, J., delivered the opinion of the
Court, in which GIERKE, J., and EVERETT, S.J., joined. CRAWFORD, C.J.,
and SULLIVAN, J., each filed an opinion concurring in the result.
Counsel
For Appellant: Major Thomas
R. Uiselt (argued); Colonel Jeanne M. Rueth and Lieutenant
Colonel James R. Wise (on brief).
For Appellee: Captain James
C. Fraser (argued); Colonel Anthony P. Dattilo and Lieutenant
Colonel Ronald A. Rodgers (on brief).
Military Judge: Robin D. Walmsley
 
 


This opinion is subject
to editorial correction before publication.
 
 

Judge EFFRON delivered the opinion of the Court.
A special court-martial composed of officer
members convicted appellant, pursuant to his pleas, of wrongfully using
on divers occasions amphetamine, "3, 4-methylenedioxy methamphetamine"(ecstasy),
or both, in violation of Article 112a, Uniform Code of Military Justice,
10 USC § 912a. He was sentenced to a bad-conduct discharge, confinement
for 2 months, forfeiture of $617 pay per month for 2 months, and reduction
to E-1. The convening authority approved the sentence as adjudged, and
the Court of Criminal Appeals affirmed. 51 MJ 536 (1999).
On appellants petition, we granted review
of the following issue:


WHETHER THE MILITARY JUDGE ERRED BY GRANTING
TRIAL COUNSEL'S PEREMPTORY CHALLENGE OF CAPTAIN MOORE, THE ONLY FEMALE
MEMBER OF THE COURT-MARTIAL PANEL, WHEN TRIAL COUNSELS OFFERED
NON-GENDER SPECIFIC BASIS FOR CHALLENGING HER WAS THAT SHE IS A NURSE.


We affirm for the reasons set forth below.

I. FACTS
After voir dire, the trial counsel exercised
his peremptory challenge against Captain (Capt) Cherielynne Moore, the
only female member of the panel. Defense counsel objected, 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 military judge then asked trial counsel to articulate his
basis for challenging Capt Moore, which immediately led to the following
colloquy:
 



TC: My reason is her profession, not
her gender.
MJ: What is her profession?
TC: Shes a nurse with the medical group, sir.
MJ: I find that thats a non-gender specific
reason. So, the peremptory is granted. Peremptory by the defense?
DC: Yes, Your Honor. And maybe for purposes
of the record, maybe it needs to be stated that Im still concerned that
thats a pretext. But thats for the record purposes only.
MJ: 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 group folks. But its
specifically nurses, not male or female.



The defense did not object to the comments of
the military judge and did not seek any further clarification from the
trial counsel. Defense counsel offered no evidence as to the proportion
of female nurses within the command or within the Air Force as a whole.
We also note that although the nursing field in the military has long been
open to women, it is well known that there is substantial participation
in the military by male military nurses.

II. DISCUSSION
Neither the prosecutor nor the defense may
engage in purposeful discrimination on the basis of race or gender in the
exercise of a peremptory challenge. See Batson v. Kentucky,
476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); J.E.B., supra;
United States v. Moore, 28 MJ 366 (CMA 1989); United States v.
Witham, 47 MJ 297 (1997). There is a specific procedure in the military
justice system for examining allegations of purposeful discrimination in
the exercise of peremptory challenges, as noted by the court below. 51
MJ at 538.
If one party believes that the other party
has exercised a peremptory challenge against a member of a cognizable group
(i.e., based on race or gender), the party opposing the challenge
must object and state the basis of the objection. See Moore,
supra at 368. The party making the challenge is then required to
offer a reason for the challenge that is neutral in terms of race or gender,
as applicable. Id. The military judge must "review the record and
weigh . . . the credibility [of the counsel making the peremptory challenge]
before . . . [the judge] makes a factual determination regarding the presence
or absence of purposeful discrimination in the panel members rejection."
United States v. Greene, 36 MJ 274, 281 (CMA 1993). The peremptory
challenge will be sustained unless the proffered reason is "unreasonable,
implausible, or . . . otherwise makes no sense." United States v. Tulloch,
47 MJ 283, 287 (1997). On appeal, the military judges determination on
the issue of purposeful discrimination is given great deference because
it is based primarily upon the judges personal evaluation of the credibility
of the counsel making the peremptory challenge. The military judges determination
of purposeful discrimination will be overturned only if it is clearly erroneous.
United States v. Greene, 36 MJ 274, 281 (CMA 1993).
The occupation of the challenged member may
or may not provide an acceptable race or gender neutral reason for a peremptory
challenge, depending on the facts of the case. In J.E.B., the Supreme
Court held that occupation could provide a sufficient basis for a peremptory
challenge if the proffered reason is not used as pretext for an improper
race or gender based challenge. 511 U.S. at 143. Absent a showing of such
pretext, the Supreme Court suggested that occupation-based peremptory challenges
could be appropriate, even in fields that are predominantly associated
with one gender, such as nursing or military service. 511 U.S. at 143 n.16.
Applying these considerations, the military judge must determine whether
the counsel's occupation-based rationale for the peremptory challenge is
a pretext by considering whether the proffer is unreasonable, implausible,
or makes no sense. See Tulloch, supra at 287. As noted
by the court below, the military judge, in making that determination, should
take into consideration the party making the challenge, the facts of the
case, and the particular occupation of the challenged court member. 51
MJ at 539.
In the present case, trial counsel told the
military judge that his peremptory challenge of Capt. Moore was based on
her occupation as a nurse in the medical group, not on her gender. The
military judge accepted trial counsels explanation as a gender-neutral
reason. When defense counsel objected that the stated reason was pretextual,
the military judge noted that, in his experience, it was typical for trial
counsel to exercise peremptory challenges against members of the medical
group.
Appellant now asserts that the military judge
erred because he did not require further articulation by the trial counsel
before the military judge ruled that trial counsel provided a gender-neutral
reason. Although it would have been preferable if the military judge had
required a more detailed articulation by the trial counsel on the record,
we note that the defense counsel did not ask for any further clarification
from trial counsel and did not object to the military judges findings.
More importantly, it is clear from the record that the military judge granted
the peremptory challenge based upon his general understanding that trial
counsel commonly prefer to not have medical personnel serve as members,
regardless of their gender. In affirming the military judges ruling, the
lower court further explained, "Rightly or wrongly, prosecutors tend to
believe that those who have dedicated their lives to comforting and caring
for the sick and infirm may focus too strongly on the accused as an individual
in need of care and comfort." Id. at 539-40.
We agree with the lower court that under the
circumstances of this case, no further articulation was necessary to support
trial counsels peremptory challenge. This does not mean that all occupation-based
peremptory challenges will pass judicial scrutiny without further articulation.
Where mere reference to an occupation does not implicitly communicate an
understanding similar to the common understanding regarding the use of
peremptory challenges against members of the medical profession, further
articulation may be required.
In this case, appellant has failed to demonstrate
that trial counsels occupation-based reason was unreasonable, implausible,
or otherwise made no sense. We agree with the lower court that that military
judge did not err in permitting the peremptory challenge of Capt Moore.

III. CONCLUSION
The decision of the United States Air Force
Court of Criminal Appeals is affirmed.
FOOTNOTE:
* We heard oral argument
in the case in the Great Hall of the Association of the Bar of the City
of New York, without objection from the parties involved. See 52
MJ at 23 n.*.


CRAWFORD, Chief Judge (concurring in the result):
In Purkett v. Elem, 514 U.S. 765, 768
(1995), the Supreme Court held that litigants can offer any "facially valid"
reason for a peremptory challenge, so long as the trial judge finds it
to be genuine. A litigants explanation for a peremptory challenge does
not have to be "persuasive, or even plausible," for it to be considered
legitimate. Id. A legitimate reason, according to the Purkett
Court, is not one "that makes sense, but a reason that does not deny equal
protection." Id. at 769.
This Courts standard for examining peremptory
challenges, announced in United States v. Tulloch, 47 MJ 283 (1997),
and perpetuated today (peremptory challenge will be sustained "unless the
proffered reason is unreasonable, implausible, or ... otherwise makes
no sense") ___ MJ (4), ignores our superior courts teaching in
Purkett. The focus should be on the genuineness of the asserted
non-racial/non-gender motive, not the reasonableness of the trial advocates
explanation. I have dissented from the majoritys justification
for its deviation from the Supreme Court standard relating to peremptory
challenges for courts-martial because I am unable to discern a valid
reason to do so. 47 MJ at 289-96.
Under either Purkett or the more restrictive
standard announced in Tulloch, appellant has failed to demonstrate
that trial counsels challenge of Capt Moore was other than occupation-based.
Accordingly, I too would affirm the decision of the United States Air Force
Court of Criminal Appeals.


SULLIVAN, Judge (concurring in the result):
I continue to adhere to my position in United
States v. Tulloch, 47 MJ 283, 289 (1997)(Sullivan, J., dissenting),
that we should follow Purkett v. Elem, 514 U.S. 765 (1995).
I also write separately to reiterate my previous
suggestion that the military justice system should eliminate the peremptory
challenge. See United States v. Witham, 47 MJ 297, 303 n.3
(1997); United States v. Tulloch, 47 MJ 283, 289 (1997)(Sullivan,
J., dissenting); Sullivan and Amar, Jury Reform in AmericaA Return
to the Old Country, 33 Am. Crim. L. Rev. 1141 (1996); cf. Batson
v. Kentucky, 476 U.S. 79, 107 (1986) (Marshall, J., concurring). The
peremptory challenge in the military, as it stands in the current of present
Supreme Court and our Courts case law, may have outlived its usefulness
and benefit. Congress and the President should relook this long established
right to strike off a jury, a juror without a judicially sanctioned cause.
Real and perceived racial and gender abuses lie beneath the surface of
the sea of peremptory challenges.


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