The Unrepresentative Military Jury: Deliberate Inclusion of Combat Veterans in the Military's Venire for Combat-Incidental Crimes

What characteristics or experiences should be required of jurors, sitting on a court-martial panel, in a military criminal courtroom? This question may seem anachronistic given what we expect of the typical, modern, civilian criminal jury — a random sampling of the community’s race, gender, and age groups that, in theory, approximates the “everyman” of society. This result can render fair and impartial judgment on the facts presented without any specialized or unique traits. But this question’s relevance is clear when one looks at a military panel and the literal and figurative uniformity of the panel members: the short hair, the stoic and stiff expression, the sharply tailored attire with award ribbons stacked in rows on their chests. Rather than a blending of different voices and backgrounds from a disparate community, these jurors come from a more homogenous pool, all working for a common employer, with similar cultural, professional, and economic characteristics.This distinction highlights the larger exceptionalism that pervades the military justice system. The Uniform Code of Military Justice (UCMJ) is a statutory scheme that unabashedly promotes the values of discipline and efficiency — both procedurally and in its substantive criminal prohibitions — that may, at times, erode competing values of fairness and accuracy in the justice system. The method of selecting court-martial panels provides a prime example of this erosion. Arguably, the UCMJ’s unique venire process — a discretionary application of six qualifying criteria by the court-martial convening authority necessitated by the exceptional demands, stresses, and circumstances in which military justice functions mandate a wholly unusual procedure. However, one supplemental branch of this exceptionalism has gone largely unnoticed. A further distinction ought to be, but has not been, made between the “mundane” crimes committed by soldiers and those crimes committed by soldiers in the midst of battle — a combat-incidental crime.Combat and everyday soldiering are totally different contexts. “Failure to obey an order or regulation” during the middle of a combat raid is not the same kind of offense as the same failure during a weekly vehicle maintenance program at the Fort Carson motor pool. “Cruelty or maltreatment” is not the same kind of offense when the victim is a detained Iraqi teenager outside Baghdad as when the victim is a soldier enrolled in Basic Combat Training at Fort Benning. Even “murder” is different in kind when the killing occurs during a raid of a household arms-cache in Basra than when it occurs during a bar fight outside Fort Bragg. In the combat context, the criminal act is derivative from combat — it either constitutes, flows directly from, or is directly caused by conduct during a combat event. The forces, factors, and feelings that drive a soldier’s conduct while under fire reshape the context in which the criminal actions occur. Yet, in terms of juror qualification, nothing in the UCMJ recognizes the distinction of the combat experience. Maltreatment is Maltreatment; Assault is Assault; Murder is Murder. As a result, a defendant soldier could face a jury of non-peers, possessing a background uncoupled from the reality of war that the defendant soldier experienced and which may provide critical context for the alleged crime.This Note proposes a simple procedural fix by redefining the venire of the court-martial. This revision will improve the fairness, legitimacy, and accuracy of the outcome without impugning the traditional values of procedural discipline and efficiency that drives the exceptionalism of the military justice system. This proposal focuses on the statutory criteria used to identify those who will sit in the panel box to judge the allegedly-criminal actions of fellow soldiers for conduct in combat — what this Note refers to as “combat-incidental crime.” The venire should consist of a specified percentage of soldiers with relevant combat experience, related to that of the accused, when demanded by the accused. This “perspective on human events” plays a much larger role when the panel executes its constitutional responsibility in assessing motivations of the defendant or witnesses, as well as “draw[ing] the ultimate conclusion about guilt or innocence,” in the context of combat.