James P. Baumgartner v. United States

Since at least 1988, race- and gender-based discrimination was permissible when selecting courtmartial panel members, the functional equivalent of jurors. United States v. Crawford, 15 C.M.A. 31 (1964); United States v. Smith, 27 M.J. 242, 249 (C.M.A. 1988). But after Petitioners’ courts-martial, the Court of Appeals for the Armed Forces held it was unconstitutional to consider a potential member’s race for the purpose of selection for or exclusion from a court-martial panel. United States v. Jeter, 84 M.J. 68, 73 (C.A.A.F. 2023). On direct appeal, both Petitioners asserted they made a prima facie showing that impermissible demographic considerations affected panel selection. But the Air Force Court of Criminal Appeals denied relief, erroneously interpreting the facts and law in both cases. When seeking the Court of Appeals for the Armed Forces’ discretionary review, Petitioners asserted the lower court’s misapplication of the law and facts constituted “good cause” to grant their petitions. But they failed to secure review, even though the Government presented racial and gender identifiers to the officer who chose one Petitioner’s panel, the selection of both Petitioners’ panels featured a one-for-one swap of minorities, and military case law permitted race- and gender-based discrimination when the panels were selected. This case raises the following question: Did the Court of Appeals for the Armed Forces abuse its discretion by failing to grant review “upon petition of the accused and on good cause shown” where Petitioners made an unrebutted prima facie showing that race and gender influenced panel selection?