United States v. Ramirez, (2024)

I write separately to make two points.

First, when a military judge is contemplating what questions to allow during voir dire, he or she must consider the following points enunciated by the Supreme Court in Rosales-Lopez v. United States, 451 U.S. 182 (1981).

• “[F]ederal trial courts must [permit voir dire inquiries into the potential racial biases of prospective jurors] when requested by a defendant accused of a violent crime and ․ the defendant and the victim are members of different racial or ethnic groups.” Id. at 192 (emphasis added).

• If the defendant is not accused of a violent crime but “the defendant claims a meaningful ethnic difference between himself and the victim, his voir dire request should ordinarily be satisfied.” Id. at 191 n.7 (emphasis added). Only when “there is a reasonable possibility that racial or ethnic prejudice might have influenced the jury” does a military judge's failure to honor the defendant's request constitute reversible error. Id. at 191.

• There are “constitutional requirements with respect to questioning prospective jurors about racial or ethnic bias,” Id. at 189, if “racial issues are ‘inextricably bound up with the conduct of the trial.’ ” Id. at 189 (quoting Ristaino v. Ross, 424 U.S. 589, 597 (1976)). Under this scenario, trial judges are required “specifically to inquire into possible racial prejudice in order to assure an impartial jury.” Id. at 189.

Second, the constitutional standard enunciated in Rosales-Lopez does not apply in the instant case because racial issues were not “inextricably bound up with the conduct of the trial.” However, the initial Rosales-Lopez category cited above could have applied in the instant case because (a) Appellant was accused of crimes of violence and (b) the accused and the victim are members of different racial or ethnic groups. Specifically, on appeal to the United States Army Court of Criminal Appeals, Appellant stated that he identifies as “Hispanic” and that the victim is “of Caucasian descent/appearance.” Importantly, however, Appellant never brought this ethnic difference to the attention of the military judge and never clearly indicated to the military judge that he was invoking the Rosales-Lopez supervisory standard. 1 Because Appellant failed to take these steps, the military judge did not clearly abuse his discretion when he denied the defense-requested inquiry.

I therefore concur in the judgment of the Court.

FOOTNOTES

1.   The defense's proposed question—“Does anyone's cultural background influence your perception on relationships between individuals of different races?”—was, in the words of the military judge, indeed “confusing” and “unhelpful to ferreting out sincerity and ability to sit as [a panel] member.”

Chief Judge OHLSON, concurring in the judgment.