Court-Martial Trial Practice

United States v. Thomas, Docket No. 24‑0147 (C.A.A.F. June 2025). Batson challenges are relatively rare in courts-martial, and that’s something your military defense counsel should know about. Thomas is a recent example of how such a challenge should be conducted and evaluated.

The history of Batson v. Kentucky, 476 U.S. 79 (1986), in courts-martial reflects the adaptation and development of equal protection principles within the military justice system, particularly as applied to peremptory challenges during member (jury) selection. Below is a structured and detailed history, tracing its introduction, doctrinal development, and modern application in military courts.

I. 🧾 Batson v. Kentucky (1986): Civilian Origin

Military defense counsel advised a client in trouble under the UCMJ will know about the right to silence and counsel.

1. Fifth Amendment Rights & Article 31, UCMJ — Overview

Fifth Amendment

United States v. Mellette. Your military defense counsel needs to know about and understand this case.

📘 1. Background and Prior History

• Accused & Charges
  EM1 (Nuclear) Wendell E. Mellette, Jr. was tried by general court-martial at NAS Jacksonville in August 2019. Contrary to his plea, he was convicted under Article 120b, UCMJ (sexual abuse of a child) for committing sexual contact upon his 15-year‑old sister-in-law. He received five years’ confinement and a dishonorable discharge afcca.law.af.mil+10Lewis & Clark Law School+10Findlaw+10.

Case Summary and Analysis: United States v. Forney, 67 M.J. 271 (C.A.A.F. 2009), that your military defense lawyer should consider. The Court of Appeals for the Armed Forces is about to get the case of United States v. Rocha, to consider private conduct which may or may not offend.

I. Background and Procedural History

Lieutenant Junior Grade Brendan C. Forney, U.S. Navy, was convicted at a general court-martial of conduct unbecoming an officer and a gentleman under Article 133, UCMJ, 10 U.S.C. § 933, for possessing child pornography. The pornography, consisting of approximately 1,700–1,800 images of naked adolescent girls aged 10–15, was found on government computers aboard the USS David R. Ray while the ship was underway.

The recent Coast Guard case outlines nicely for an accused and military defense counsel how an appellate court evaluates lengthy post-trial delay.

1. Governing Framework for Post‑Trial Delay

Courts evaluate post‑trial processing under two independent regimes:

What is the bottom line for a military defense counsel or accused who want to sever court-martial charges? Southworth is the leading military case on the subject.

Factual Synopsis

Appellant faced a single, joint general court‑martial for two sexual‑assault episodes committed on successive evenings, 5–6 August 1995. The first involved AL, an adult Navy sailor, in a barracks “group‑sex” setting; the second involved LP, a 13‑year‑old civilian dependent, in a storage shed at a base festival. Before trial the defense sought severance under Rule for Courts‑Martial (RCM) 906(b)(10), contending that joinder posed an undue “spillover” risk because evidence from one incident would be inadmissible at a separate trial on the other. The military judge denied severance but offered special findings and ultimately instructed members that each specification must “stand on its own.” The panel acquitted appellant of raping AL (convicting only of indecent assault, later set aside for factual insufficiency) and convicted him of raping LP. On appeal, appellant claimed that the AL evidence impermissibly bolstered the LP case and that the limiting instruction was inadequate.

In Weisbeck, the Court of Appeals for the Armed Forces addressed the question of a delay in trial after the accused hired a civilian counsel. This is a case your military defense counsel should be aware of. The case does not hold that a delay is automatic, but it does outline how an accused may make arguments in his favor.

An important point is what happens when the prosecution wants to offer evidence under Mil. R. Evid. 404(b), and the defense needs time to investigate and respond to that evidence.

United States v. Weisbeck, 50 M.J. 461 (C.A.A.F. 1999) — Summary

Here is a summary of an interesting article about how the Army FAP denies a servicemember of due process, and recommending changes.

We at Cave & Freeburg, have represented many servicemembers caught up in the FAP.

Executive Summary