Under Article 41(b)(1), UCMJ each side is afforded one peremptory challenge unless new members are detailed. United States v. Arriaga, ACM 37439, 2010 WL 2265581 (A.F. Ct. Crim. App. May 7, 2010) (unpublished) deals with a contested trial where the accused was found guilty of housebreaking and indecent assault. Shortly before the trial, the 20th Fighter Wing Commander (an O6) conducted briefings about sexual assault allegations in the area in which the perpetrator used a weapon in his victims; while it is not stated in the opinion, it appears that these briefings were not about the accused. The Wing Commander specifically briefed 250-300 military dorm residents and 100 military personnel and civilians at a town hall meeting, and then provided a separate “Commander’s Briefing” by e-mail. The Wing Commander further directed that flyers be posted around the installation about being safe and vigilant. Based on these actions, the defense moved for a change of venue predicated on unlawful command influence. The military judge deferred ruling until voir dire was completed. During individual voir dire, the members who had seen flyers or attended the briefings (or both) stated the focus was safety and protecting others on base. One member who attended the briefing said the Wing Commander did not mention any specific case or suggest particular action be taken. Based on the panel members’ responses during voir dire, the AFCCA held UCI did not taint the proceedings.
The liberal voir dire of members showed that there was no UCI in the case. Military judge allowed questioning of the members to ensure the commander’s briefings and related materials did not affect the proceedings. At the end of voir dire, defense counsel said, “[W]e agree that the remedy we requested for a change of venue is moot at this point. We’ve been able to select a panel that appears to not be affected at all by these statements if they even heard them or paid attention to them.“
While the facts of the case suggest the military judge and appellate court would have come to the same conclusion without this defense concession, the appellate counsel’s argument was more challenging because the defense counsel at trial agreed the facts did not show UCI or even justify changing venue.