Deep Down Inside, Does the Convening Authority Want to Be a Judge?

Defense attorney Lt. Cdr. Stephen Reyes is up first for AE86---the motion to withdraw the charges because of an improper referral by the Convening Authority.  The issue is this, he says: ordinarily, the Convening Authority orders the commission to go forward, but then surrenders the control of the proceedings to the military judge.  But here, the Convening Authority has issued an explicit order to Judge Pohl regarding, among other things, how he will conduct voir dire of the commission members.  In this fashion, the attorney argues, the Convening Authority has exceeded his authority, and trampled Judge Pohl’s discretion. Judge Pohl disputes the defense’s characterization of the order: the order doesn’t tell me, he says, how I have to conduct voir dire or how I should rule on challenges.  He goes over the challenge and the alternate seating procedure for commission members---and, Reyes seems to agree with Judge Pohl’s recitation of the facts. But Reyes nevertheless says there’s still a problem regarding the timing of voir dire as to selectees and alternates, and regarding the number of members fixed by the Convening Authority's order.  And, Reyes adds, here we are trying to interpret that order like a vague statute or other authority.  There’s no need for this ordinarily. Jury matters typically are for the judge alone to resolve.  The colloquy establishes a new motif for our litigation---that of “creeping” Convening Authority power. Over to Prosecutor Mark Martins, who summarizes several reasons to deny the request.  Judge Pohl eventually interrupts, and asks if the commission rules regarding panel composition are coextensive with those of courts martial.  They are not, Martins says.  He argues that commission procedures---and the Convening Authority’s order---account for possible delay or mistrial by reason of juror absence.  He then goes over, in painstaking detail, the operation of MCA 2009 948m---which jibes with the need to have alternates on standby throughout the trial.  According to Martins, the Convening Authority had this structure in mind, in issuing its order.  For his part, Judge Pohl notes that the government chose Guantanamo as the trial site.  It ought to bear any logistical burdens associated with its choice, including the potential inconveniences to panel members who find themselves in GTMO for long stretches of time.  The court and trial counsel then debate various member-alternate scenarios: what if one panel member falls ill between the merits and penalty phases? What kinds of challenge procedure – for cause and peremptory - does Martins envision specifically at trial?  For Judge Pohl, though, the issue comes to this: the government wants a maximum of 15 members, 12 of whom will vote on the trial’s outcome, and 3 of whom will not get to vote, unless an absence occurs.  Martins demurs on that specifically, but asks the court to reject the defense’s claim of mission creep or improper referral.   The commission adds that, down the line, there’s some question as to how the jury rules will function under the order. Return serve to Reyes, who says that the extensive colloquy between the court and trial counsel only proves his point about the Convening Authority's order.  Okay, says Judge Pohl.  What if, in fact, the Convening Authority has acted contrary to the rules?  Even if so, how is that a “defective” referral warranting withdrawal?  Reyes answers with more argument about the members.  He emphasizes that in normal capital courts martial, 18 members are detailed.  But the Convening Authority here has limited the number of members to 12.  That’s the maximum, but the MCA entitles the accused to at least 12 members.  The defense and the judge then talk past one another some more, Reyes about panel size, and the court about what makes the referral unlawful.  Defense counsel eventually agrees that the court could reject the Convening Authority’s order, and supply a remedy based upon ordinary courts-martial procedure.  The defense lawyer closes with some more emphasis: this convening order is an attempt to influence what will happen in the future.  The Convening Authority should respect the institutional roles of the prosecution, defense, and court. The prosecutor returns to remind the court that the burden rests on the defense.  He also argues that a lack of clarity in a convening order is not evidence of an improper or unlawful referral.  Convening orders can and often are amended.  Today’s colloquy could supply any needed clarification, to the extent that the commission finds fault with the Convening Authority's order.  Martins also reiterates the need to prevent the prolonged absences of pool officers from their duty stations. Judge Pohl says he’ll take the motion under advisement and rule later.  We’re in a ten minute recess.