United States v. Jeter (2023)

Judge MAGGS, dissenting.

Everyone involved in this case—Appellant, the Government, the military judge, the judges of the United States Navy-Marine Corps Court of Criminal Appeals (NMCCA), and all the judges of this Court—agrees on a fundamental point: A convening authority may not discriminate on the basis of race when detailing members to serve on a court-martial. Such discrimination would not only be unauthorized by Article 25, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 825 (2018), but would also violate the Due Process Clause of the Fifth Amendment of the United States Constitution. I fully concur with the majority opinion's thorough discussion of this basic principle.

But whether a convening authority may discriminate on the basis of race is not specifically at issue in this appeal. The precise question at issue is whether Appellant has shown, either by affirmative evidence in the record or through unrebutted evidentiary presumptions, that racial discrimination occurred in this case. For the reasons explained below, I agree with both the NMCCA and the military judge that Appellant has not established that the convening authority acted improperly. I therefore respectfully dissent from the Court's judgment setting aside the findings and sentence in this case.

Before turning to my analysis, a preliminary point requires attention. The Court's opinion focuses almost exclusively on the two specified issues for which this Court ordered additional briefing.¹ Addressing these issues, the Court concludes that United States v. Crawford, 15 C.M.A. 31, 35 C.M.R. 3 (1964), conflicts with subsequent decisions of the United States Supreme Court and is therefore no longer good law. I fully agree with the Court. Crawford was incorrect when it was decided, and subsequent decisions of the Supreme Court have eliminated any weight it carried as precedent. But in my view, the invalidity of Crawford does not affect the outcome of this case. The NMCCA did not cite or rely on Crawford in rejecting Appellant's claims. United States v. Jeter, 81 M.J. 791 (N-M. Ct. Crim. App. 2021). The Government also does not rely on Crawford in defending the NMCCA's judgment and specifically asserts that the holding in Crawford is not directly implicated. And for the reasons explained below, reference to Crawford is unnecessary to resolve this appeal. Thus, while I agree with the Court about Crawford, I reach a different conclusion about whether we should affirm the NMCCA.

I. Appellant's Arguments

In his well-organized briefs, Appellant presents three distinct arguments for relief. These arguments rest on separate doctrines established by precedents of the United States Supreme Court. In my view, however, Appellant does not prevail under these precedents.

A. Appellant's Argument Based on Avery and Alexander

Appellant's first argument relies on the Supreme Court's decisions in Avery v. Georgia, 345 U.S. 559 (1953), and Alexander v. Louisiana, 405 U.S. 625 (1972). In Avery, a jury in a Georgia state court found an African American criminal defendant guilty of rape. 345 U.S. at 560. The defendant sought to overturn his conviction based on racial discrimination in the selection of the jurors. Id. at 560-62. The record showed that the names of persons eligible for jury service had been written on color-coded tickets and placed in a box. Id. at 560-61. A judge then selected the venire by drawing sixty tickets from the box. Id. The selection process was not race-neutral because “the names of white persons ․ [were] printed on white tickets; the names of Negroes [were] printed on yellow tickets.” Id. at 560. The use of separately colored tickets had “no authorization in the Georgia statutes.” Id. at 562. Indeed, there was testimony from a “member of the county Board of Jury Commissioners that the use of these white and yellow slips was designed for purposes of racial discrimination, and it [was not] shown that they could serve any other purpose.” Id. at 564 (Frankfurter, J., concurring). The judge who selected the jurors could see the colors of the tickets through an aperture in the box. Id. Although five percent of the tickets were yellow, the judge did not select any of them for the venire from which the jury was chosen. Id. at 563 (Reed, J., concurring). Accordingly, the jury in the case did not include any African Americans. Id. at 561 (opinion of the Court). Based on these facts, the United States Supreme Court agreed with the Georgia Supreme Court that the defendant in Avery had “certainly established a prima facie case of discrimination.” Id. at 562.

The Court in Avery then considered whether the state had rebutted the prima facie case. A key fact was that the judge who selected the tickets had testified that “he did not, nor had he ever, practiced discrimination in any way, in the discharge of that duty.” Id. at 561. The Georgia Supreme Court had held that the judge's testimony showed that the use of the colored tickets had caused no harm. Avery v. State, 70 S.E.2d 716, 722 (Ga. 1952). But the U.S. Supreme Court rejected this conclusion, stating that “based upon [its] independent analysis of the record [the] petitioner has made a sufficient showing of discrimination in the organization of this particular panel.” Avery, 345 U.S. at 561 (footnote omitted). Justice Frankfurter concurred, explaining: “The mind of justice, not merely its eyes, would have to be blind to attribute” the absence of African Americans on the jury “to mere fortuity” as opposed to intentional discrimination. Id. at 564 (Frankfurter, J., concurring).

In Alexander, a Louisiana state court convicted an African American defendant of rape. 405 U.S. at 626. On appeal, the defendant argued that his indictment was invalid because of racial discrimination in the selection of the members of the grand jury. Id. at 626-28. The record showed that a commission had selected grand jurors through a multistep process that began by asking local residents to fill out a questionnaire. Id. at 627-28. The Supreme Court explained:

The questionnaire included a space to indicate the race of the recipient. Through this process, 7,374 questionnaires were returned, 1,015 of which (13.76%) were from Negroes, and the jury commissioners attached to each questionnaire an information card designating, among other things, the race of the person, and a white slip indicating simply the name and address of the person. The commissioners then culled out about 5,000 questionnaires, ostensibly on the ground that these persons were not qualified for grand jury service or were exempted under state law. The remaining 2,000 sets of papers were placed on a table, and the papers of 400 persons were selected, purportedly at random, and placed in a box from which the grand jury panels of 20 for Lafayette Parish were drawn. Twenty-seven of the persons thus selected were Negro (6.75%). On petitioner's grand jury venire, one of the 20 persons drawn was Negro (5%), but none of the 12 persons on the grand jury that indicted him, drawn from this 20, was Negro.

Id. at 627-28 (footnotes omitted).

Following its earlier decision in Avery, the Supreme Court held that the defendant in Alexander had established a prima facie case of discrimination. Id. at 631. The Court explained:

This Court has never announced mathematical standards for the demonstration of ‘systematic’ exclusion of blacks but has, rather, emphasized that a factual inquiry is necessary in each case that takes into account all possible explanatory factors. The progressive decimation of potential Negro grand jurors is indeed striking here, but we do not rest our conclusion that petitioner has demonstrated a prima facie case of invidious racial discrimination on statistical improbability alone, for the selection procedures themselves were not racially neutral. The racial designation on both the questionnaire and the information card provided a clear and easy opportunity for racial discrimination.

Id. at 630. The Supreme Court next considered whether the state had rebutted this prima facie case of racial discrimination “by showing that permissible racially neutral selection criteria and procedures have produced the monochromatic result.” Id. at 632. The Court concluded that the state had not met its burden. Id. Although a member of the commission had testified “that no consideration was given to race during the selection procedure,” the Supreme Court found this statement inadequate to rebut the prima facie case because the “ ‘result bespeaks discrimination, whether or not it was a conscious decision on the part of any individual jury commissioner.’ ” Id. (quoting Hernandez v. Texas, 347 U.S. 475, 482 (1954)).

Appellant argues that the Avery and Alexander decisions require reversal of the NMCCA. He asserts that he has established a prima facie case of discrimination because (1) all of the members of his court-martial were white, (2) the selection process was not race-neutral given that some members under consideration for detail to the court-martial had completed questionnaires that asked about their race, (3) the convening authority chose the members of the panel based on the information in the questionnaires, and (4) the members were chosen from a large population of available persons. Appellant further argues that the Government has not rebutted the prima facie case because the convening authority and acting convening authority failed to explain why they did not select any African Americans to serve on the panel.

Although trial defense counsel challenged the makeup of the panel before the military judge, he did not cite Avery or Alexander, nor did he raise the specific argument that he now makes before this Court. Trial defense counsel initially alleged “systematic exclusion of members based on race” solely because the panel included no minority members even though the convening authority had the “opportunity to put a minority representation on the panel.” He did not allege or provide any evidence that the convening authority had abused the selection system. On the contrary, trial defense counsel asserted that “all we have is the makeup to go on, sir, but we believe that that is sufficient without the allegation raised up.” Later on at the trial, defense counsel presented distinct arguments based on an alleged pattern of all-white panels in the Norfolk region. In his briefs before the NMCCA, Appellant also did not cite Avery or Alexander.

Accordingly, in my view, Appellant forfeited the argument based on Avery and Alexander that he now makes before this Court. See United States v. King, 83 M.J. 115, 120 (C.A.A.F. 2023) (arguments concerning court-martial composition that are not raised at trial are forfeited). Because Appellant forfeited the issue, we may review it only for plain error.² Id. at 120-21. Under the plain error standard of review, the appellant ordinarily “ ‘bears the burden of establishing: (1) there is error; (2) the error is clear or obvious; and (3) the error materially prejudiced a substantial right.’ ” Id. at 123 (quoting United States v. Robinson, 77 M.J. 294, 299 (C.A.A.F. 2018)). But when the error alleged is a constitutional error, as here, this Court has held that the government bears the burden on the issue of prejudice and must prove that the error was harmless beyond a reasonable doubt. United States v. Tovarchavez, 78 M.J. 458, 462 (C.A.A.F. 2019).

Applying the plain error standard of review, I conclude that Appellant is not entitled to relief because any error under Avery and Alexander was not clear and obvious. I reach this conclusion for two reasons. First, the facts of this case are markedly different from the facts of Avery and Alexander. In Avery, state officials used white and yellow tickets to identify potential jurors, without legal authorization, specifically so they could discriminate against African Americans. 345 U.S. at 560-62. In addition, a review of the entire record left the Court unconvinced by the state judge's utterly implausible assertion that he had not used the colored tickets to discriminate notwithstanding the all-white jury that he selected. Id.

By contrast, in this case, agents of the command cited Rule for Courts-Martial (R.C.M.) 912 in their questionnaires as authority for asking potential members about their race.³ The record contains no testimony suggesting the selection process “was designed for purposes of racial discrimination,” as in Avery. 345 U.S. at 564 (Frankfurter, J., concurring). Nor are the questionnaires clearly and obviously comparable to Avery’s white and yellow tickets. The questionnaires asked each prospective member over fifty questions about a wide range of information, while the tickets reduced each prospective juror to two characteristics: their name and race. Id. at 560.

In Alexander, the Supreme Court focused on evidence of a multistep process that systematically removed African Americans from a pool of grand jurors at every step and produced a highly improbable result. 405 U.S. at 627-28. The record does not establish that anything of the kind occurred in this case. See id. at 630 (explaining that the Supreme Court's conclusion did “not rest ․ on statistical improbability alone”).

Second, any error under Avery and Alexander is not clear and obvious given this Court's decision in United States v. Loving, 41 M.J. 213, 285 (C.A.A.F. 1994). In Loving, the appellant objected to “inclusion of racial and gender identifiers on the lists of nominees” for service on courts-martial. Id. This Court held that “[w]e will not presume improper motives from inclusion of racial ․ identifiers on lists of nominees for court-martial duty.” Id. In the light of this precedent, soliciting the racial identity of the potential members was not so clearly and obviously contrary to Avery and Alexander that the military judge should have acted on it even though trial defense counsel did not raise the argument.

In concluding that Appellant has failed to show that any error was clear and obvious, I do not rely in any way on Crawford. In that case, the Court held that the convening authority did not act improperly even though he specifically selected a court member based on his race. 15 C.M.A. at 41, 35 C.M.R. at 13 (opinion of Quinn, J.); id. at 49, 35 C.M.R. at 21 (Kilday, J., concurring in the result). Today the Court concludes that Crawford is no longer good law. Again, I agree with that decision. But rejecting Crawford makes no difference to my analysis or my conclusion in the present case that any error under Avery and Alexander was not plain and obvious.

B. Appellant's Argument Based on Batson

Appellant next argues that this Court should evaluate the convening authority's selection of members under the Supreme Court's decision in Batson v. Kentucky, 476 U.S. 79 (1986). In Batson, the Supreme Court held that a criminal defendant “may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial.” Id. at 96. Specifically, a defendant can make a prima facie case by showing that (1) “he is a member of a cognizable racial group,” (2) “the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race,” and (3) “these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.” Id. Once the defendant establishes a prima facie case, the burden shifts to the prosecution to establish that the peremptory challenge was not exercised for a racially discriminatory purpose. Id. at 97. The keystone of Batson was the Supreme Court's holding that a “defendant is entitled to rely on the fact ․ that peremptory challenges constitute a jury selection practice that permits ‘those to discriminate who are of a mind to discriminate.’ ” Id. at 96 (quoting Avery, 345 U.S. at 562).

Appellant bases his Batson argument on Judge Cox's observation that in selecting the members of a court-martial, the convening authority “has the functional equivalent of an unlimited number of peremptory challenges.” United States v. Carter, 25 M.J. 471, 478 (C.M.A. 1988) (Cox, J., concurring). The idea is that while the trial counsel has only one peremptory challenge in the courtroom to exclude a panel member, R.C.M. 912(g)(1), the convening authority can effectively exclude an unlimited number of service-members when issuing a court-martial convening order by simply not detailing them. Appellant argues that the convening authority's alleged unlimited peremptory strikes resulted in an all-white court-martial, which establishes a prima facie case of discrimination under Batson that the Government failed to rebut. I will assume that Appellant preserved this argument because trial defense counsel specifically—although vaguely—mentioned peremptory challenges in connection with his objection to the selection of the members before the military judge, and he asked the military judge to order the convening authority to provide a race-neutral justification. Appellant also specifically cited Batson and made a similar argument before the NMCCA.

In United States v. Bess, 80 M.J. 1 (2020), this Court heard essentially the same Batson argument that Appellant now makes. The Court in Bess, however, did not produce a majority opinion on the issue. Two of the three judges who agreed with the judgment in Bess rejected the Batson argument, explaining that requiring a convening authority to provide a race-neutral justification for not including certain persons on a court-martial would be an unauthorized extension of the Batson decision. Id. at 8-9 (opinion of Ryan, J., joined by Stucky, C.J.). These judges saw no “precedent that would require extending Batson’s holding outside the context of peremptory challenges” and noted that “the only extensions of Batson [by the Supreme Court] have been within the peremptory strike context itself.” Id.; see also United States v. Gooch, 69 M.J. 353, 359 (C.A.A.F. 2011) (distinguishing Batson because, unlike in Batson, there was no evidence of an “improper motive to pack the member pool or to exclude members based on race” (internal quotation marks omitted)). As the only other judge who concurred in the judgment in Bess, I did not reach the Batson issue. In my view, addressing the issue on the merits was unnecessary in Bess because the record did not establish a key predicate for the appellant's claim, namely, that all members of the panel were white. 80 M.J. at 14-15 (Maggs, J., concurring in part and concurring in the judgment).

The record in this case differs from the record in Bess. In Bess, the “military judge made no finding as to the members’ races,” explained that “she was uncertain of their races based on their appearances,” and “refused to infer their races based on stereotypes.” Id. at 15 n.1. In contrast, in this case, the military judge stated on the record: “Without asking people directly what do [they] consider their race ․ [i]t appears that they [are] all white men.” While some military judges might not have made findings about race solely based on appearance, neither party has challenged the military judge's conclusion in this case as clearly erroneous. I therefore will assume that Appellant has established this factual predicate for his Batson argument.

Reaching the Batson issue now, I agree with Judge Ryan's reasoning in Bess. In Batson, the Supreme Court created a burden-shifting rule that applies to the specific context of peremptory challenges. The Supreme Court's opinion in Batson reveals that this burden-shifting rule is an application of Avery and Alexander to allegations of discrimination in the courtroom. 476 U.S. at 96-97. For challenges alleging discrimination outside of the courtroom, such as an allegation of discrimination by a convening authority in detailing members to a court-martial, the general rules of Avery and Alexander—not Batson—are the proper framework.

Indeed, the Supreme Court has not extended Batson beyond peremptory challenges. Moreover, other federal courts have expressly declined to extend Batson to closely related contexts. See, e.g., United States v. Elliott, 89 F.3d 1360, 1364-1365 (8th Cir. 1996) (rejecting the application of Batson to for-cause challenges); United States v. Blackman, 66 F.3d 1572, 1575 n.3 (11th Cir. 1995) (same). Accordingly, while neither Judge Cox nor Appellant is wrong to observe that the court-martial detailing process is some-what similar to peremptory challenges, I still see no authority for this Court to extend Batson to a convening authority's selection of panel members.

The Court reaches a contrary holding, concluding with little discussion that Batson does apply to a convening authority's selection of panel members. The Court further concludes that Appellant has made a prima facie showing under Batson. But even assuming arguendo that Batson applies to a convening authority's detailing decisions because they are similar to peremptory challenges, I would conclude that the military judge still did not err in denying Appellant's motion challenging the panel. As explained above, the Supreme Court in Batson instructed that before finding a prima facie case of discrimination, a court must consider not only the race of the accused and the use of a peremptory challenge to excuse a member of the same race but also whether “any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.” 476 U.S. at 96. The consensus of the federal United States Courts of Appeals is that this is a “fact-sensitive” question that “should be reviewed under the familiar clear-error standard.” United States v. Bergodere, 40 F.3d 512, 516 (1st Cir. 1994).⁴ This Court has followed the same approach, applying the clear error standard to evaluate allegations that a convening authority discriminated based on race when selecting members of a court-martial. Gooch, 69 M.J. at 359.

In this case, after hearing arguments from trial counsel and defense counsel, the military judge asked trial defense counsel if Appellant had any evidence “other than just the bare makeup of the panel.” Trial defense counsel replied, “No, sir. That's all we have.” The military judge then noted that Appellant's only evidence was “the fact that [the panel was] all white men,” and explained that Appellant could still “put[ ] on evidence or call[ ] witnesses.” Trial defense counsel responded by stating that Appellant would “stand on [his] motion as it is.”

The military judge then denied Appellant's motion with an oral ruling:

The Court is not going to disqualify this entire panel without ever attempting to seat them. At this time the Article 25 criteria—age, education, training, experience, background, judicial temperament—those types of issues are not what's supposed to be attacked here. The attack here is the gender and ethnic makeup of this panel based upon the accused being an African-American male; the panel lacks the diversity of anything else other than white men. So without more, ․ the court just doesn't have in front of it the evidence to attack ․ each member individually or their selection in general. ․ [I]f the defense wants to attack it later maybe based upon what individuals say how they got here ․ I will open it back up ․ but right now I don't see ․ based on just the bare allegation alone, the convening authority acting in a manner to purposely exclude women or minorities.

(Transcript punctuation edited for clarity.) The military judge ultimately found that the defense had “provided nothing in the way of either direct or circumstantial proof to buttress the naked statistic on which he relie[d].” Bergodere, 40 F.3d at 516. Nothing in the record shows that the military judge's finding was clearly erroneous. Appellant therefore did not make the showing necessary to establish a prima facie case under Batson.

C. Appellant's Argument Based on Castaneda

Appellant's final argument is that he has established a prima facie case of racial discrimination by the convening authority under the Supreme Court's decision in Castaneda v. Partida, 430 U.S. 482 (1977). In Castaneda, the Supreme Court announced a three-step test for evaluating claims alleging that a process for selecting jurors or grand jurors systematically excludes minorities. Id. at 494-95. The Supreme Court stated:

The first step is to establish that the group is one that is a recognizable, distinct class, singled out for different treatment under the laws, as written or as applied. Next, the degree of underrepresentation must be proved, by comparing the proportion of the group in the total population to the proportion called to serve as grand jurors, over a significant period of time. ․ Finally, ․ a selection procedure that is susceptible of abuse or is not racially neutral supports the presumption of discrimination raised by the statistical showing.

Id. (citations omitted). Appellant contends that he has satisfied this test because several recent general courts-martial in the Navy at Norfolk have had no African American members.⁵ Appellant preserved this argument, in my view, by arguing to the military judge that there had been a “pattern” of all-white panels. He also specifically relied on Castaneda in his briefs before the NMCCA.

In Bess, however, this Court rejected an almost identical claim. Assuming, without deciding, that the Castaneda test applies to the selection of members of a court-martial, the Court reasoned that the appellant in Bess had not produced statistical evidence covering a “significant period” as the Supreme Court's test requires. Bess, 80 M.J. at 9-10 (citation omitted) (internal quotation marks omitted). The present case is not materially different from Bess. Appellant has cited a few recent cases but has not identified evidence of disproportionate representation over a significant period. Following Bess, I therefore conclude that Appellant also has failed to make a prima facie case of purposeful discrimination under Castaneda.

Appellant argues that this Court should reconsider the assumption in Bess that Castaneda applies the same way in the military as it does in civilian contexts. He asserts that “the unique nature of convening authorities’ relatively short periods of tenure should prompt a departure from such an extensive time requirement.” But Appellant cites nothing that would require this Court to apply Castaneda and in so doing to alter the Castaneda test.

II. The Court's Discussion of Article 25, UCMJ

In addition to holding that Appellant has shown a prima facie violation of the Constitution, the Court also addresses Article 25, UCMJ. The Court asserts that Article 25, UCMJ, does not permit a convening authority to use race as a criterion for selecting panel members. I fully agree with this statement. But in my view, Appellant is not entitled to relief for a violation of Article 25, UCMJ, because the record does not establish either a clear error by the military judge or prejudice to Appellant.

When Appellant raised a challenge under Article 25, UCMJ, at trial, the military judge rejected it as unsupported by the facts. This Court reviews a military judge's findings of fact regarding challenges to member selection under Article 25, UCMJ, for clear error. United States v. Riesbeck, 77 M.J. 154, 165 (C.A.A.F. 2018); Gooch, 69 M.J. at 358-59. With respect to Appellant's Article 25, UCMJ, challenge, the military judge specifically ruled:

I don't see any improper selection using the Article 25 criteria. ․

․

․ I'm going to stick by my initial ruling that I don't see any unlawful Article 25 issue here, but ․ there is no evidence they are not using the Article 25 criteria[:] background, education, age, judicial temperament. Knowing the courts have routinely said that you can use demographic[s] to include ․ people, minorities, women, people like that ․ And that is not impermissible—

․

․ But in this case, I still don't see the systemic exclusion of those people. I see and understand your point and it's noted for the record.

The military judge thus found that the convening authority had not deviated from the Article 25, UCMJ, criteria and did not impermissibly exclude minorities. These findings are not clearly erroneous, and accordingly, I see no basis for finding an error under Article 25, UCMJ.

In addition, I note that reaching a different conclusion would violate the principle that “without contrary indication, ‘the presumption of regularity requires us to presume that [the convening authority] carried out the duties imposed upon him by the Code and the Manual.’ ” Bess, 80 M.J. at 10 (quoting United States v. Wise, 6 C.M.A. 472, 478, 20 C.M.R. 188, 194 (1955)). Because I see no “contrary indication,” I believe that the presumption of regularity applies in this case.

Finally, even assuming that an error occurred under Article 25, UCMJ, Appellant has not established prejudice. An error under Article 25, UCMJ, is a statutory error. The test for prejudice for a “nonconstitutional error in the application of Article 25, UCMJ,” is whether the error “ ‘materially prejudiced the substantial rights of the accused.’ ” Gooch, 69 M.J. at 360 (quoting Article 59(a), UCMJ). Appellant has not provided any grounds for concluding that the panel that tried him was not “fair and impartial.” Id. at 361. Accordingly, I would hold that Appellant has not carried his burden of showing that any error in soliciting the racial identity of potential panel members, without more, caused material prejudice to his substantial rights.

III. Conclusion

For the foregoing reasons, I would affirm the decision of the United States Navy-Marine Corps Court of Criminal Appeals.

FOOTNOTES

1.   Specified Issue I is: “In United States v. Crawford, 15 C.M.A. 31, 35 C.M.R. 3 (1964), this Court held that in the course of panel selection a race-conscious process is permissible for the purpose of inclusion. How does the Crawford decision affect the analysis of this case under Avery v. Georgia, 345 U.S. 559 (1953)?” Specified Issue II is: “In light of Appellant's statement at oral argument that race is an improper consideration in detailing panel members, should this Court overrule United States v. Crawford, 15 C.M.A. 31, 35 C.M.R. 3 (1964)?”

2.   This Court has considered some arguments not raised before a Court of Criminal Appeals, but the practice has been criticized. See United States v. Johnson, 42 M.J. 443, 448 (C.A.A.F. 1995) (Crawford, J., concurring in the result) (“If an issue is not raised by counsel, not specified and not addressed in an opinion, waiver should apply absent a showing of good cause for failing to raise the issue or manifest injustice.”); cf. Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005) (“[W]e are a court of review, not of first view.”).

3.   R.C.M. 912(a) lists information about which trial counsel and trial defense counsel may ask the members before trial. R.C.M. 912(a)(1)(C) includes “Race.” Appellant also cites this rule as possible authority for the convening authority to include a question about race in the questionnaire given to potential panel members.

4.   See United States v. Casper, 956 F.2d 416, 418 (3d Cir. 1992); United States v. Grandison, 885 F.2d 143, 146 (4th Cir. 1989); United States v. Branch, 989 F.2d 752, 755 (5th Cir. 1993); United States v. Hall, 20 F.4th 1085, 1097 (6th Cir. 2022); United States v. Moore, 895 F.2d 484, 485 (8th Cir. 1990); United States v. Vasquez-Lopez, 22 F.3d 900, 902 (9th Cir. 1994); United States v. Hill, 643 F.3d 807, 837-38 (11th Cir. 2011); see also Hernandez v. New York, 500 U.S. 352, 369 (1991) (plurality opinion) (“[W]e decline to overturn the state trial court's finding on the issue of discriminatory intent unless convinced that its determination was clearly erroneous”); id. at 372 (O'Conner, J., joined by Scalia, J., concurring in the judgment) (“I agree with the plurality that we review for clear error the trial court's finding as to discriminatory intent”); but see United States v. Jordan, 223 F.3d 676, 686 (7th Cir. 2000) (explaining that a de novo standard of review applies to review of whether the defendant has made a prima facie case under Batson).

5.   Appellant has cited what he considers “four courts-martial of an African-American accused in which the same Convening Authority hand-selected all-white panels.” I do not necessarily agree with his characterization of these cases. For example, one of the cases that Appellant cites is Bess, and in that case as explained above, the military judge did not make a finding regarding the races of the panel members.

Judge MAGGS, dissenting