Does the military want to take all authority away from CAs?
I get that the government wants to keep discovery as limited as possible (despite protestations about “open discovery”) but this position seems like it’s inviting a ruling that is far less palatable than what the Navy is trying to avoid.
Former DC, what do you mean regarding protests about "open discovery"? In this case, Bess asked for "discovery" about the racial make up of the entire area, among other things. I'm not generally aware of any handy databases that could pull that information, so it's really a production request--trying to get them to figure out the data. While probably do-able, how many weeks or months should the case be continued when the request is dropped the morning of trial commencing--with the only basis being that no one is apparently black on the panel?
In terms of the evidence, we have one panel which, based on the visual assumption of counsel, didn't have any black members. How much remedy is deserved if that's all the evidence available? The proffer of a Defense counsel that they think this happened in another case is hardly evidence. (the silence of a prosecutor who is not involved in panel selection and probably has no idea does not transmute it into evidence)
The Defense brief also seems to miss a significant difference from Batson, in so much as there's no evidence the CA generally knew the race of the members (as it wasn't consistently listed in questionnaires), whereas the prosecutor could visibly see what the defense saw in Batson.
Of course, this also raises the thorny question of how race-conscious we want SJAs and CAs being in panel selection. I would guess that they simply avoided the issue entirely (even though they're allowed to affirmatively seek racial information and place members who identify as the same racial group as the Accused). The average SJA would probably feel queasy advising a CA on considering race in selection, as I doubt there's any standardized guidance encouraging it.
What about racial considerations occurring before the member selection package is even handed to the CA? The SJA office sends out an email to the S1 shops soliciting nominations for members available for whatever the trial dates are. The S1 shops then forward that to individual companies who then forward it to subordinate section leaders. Those leaders that then respond with nominations are absolutely aware of the the race of their nominees. Is there a risk of implicit bias interjecting itself at that stage? If so, shouldn't that bias be ultimately attributable to the CA and his/her application of Art 25 criteria in member selection.
Absolutely, I think you're right about the danger of implicit bias affecting selection. (also note, in some civilian jurisdictions, the system for pulling jurors, say, using DMV records, may add bias to selection) And you're right that the bias can be at the lowest level. I don't feel like the argument in the filing recognizes that many (or most) CAs are actually looking at a fairly small pile of nominated members, and then kick out 1 or 2 before approving, rather than picking members on their own out of an enormous pool.
This is part of the reason I'm for scrapping Art 25, removing CAs from member selection entirely, and creating some more randomized system through a base admin office. Right now, we ask CAs to be disinterested and impartial AND to review and decide who's best qualified as a member. No matter what they do, they can step wrong and create error--and regardless, it looks bad.
But without changing the system, what general remedy is appropriate and realistic, aside from collecting and forwarding all of the relevant comms/emails in discovery? I've heard the complaint that it won't reveal the savvy racists--but then, what would?