United States v. Porter

EVERETT, Chief Judge

(concurring):

In my dissenting opinion in United States v. Mason, 16 M.J. 455, 457 (C.M.A.1983), I stated my view that in the military trial arena, “grounds for challenges for cause should be liberally construed.” I went on to indicate in some detail how this might be reconciled, as a practical matter, with realities of military justice practice. Indeed, I noted in Mason that the Manual exhorts military judges to “be liberal in passing on challenges.” Para. 62h (2), Manual for Courts-Martial, United States, 1969 (Revised edition). In this case, though, I agree with Judge Cook that the situation is not one in which the military judge abused his discretion in denying the challenge.

Concerning Judge Fletcher’s “rejection of] the lead opinion’s indiscriminate analogy to civilian challenge practice,” 17 M.J. 380, I believe reference to the Supreme Court’s opinion in Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982), is entirely appropriate where, as here, the challenge did not involve grounds unique to the military community, such as command influence or a military relationship with witnesses or victims. See United States v. Mason, supra.