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Practice Notes
Called to Order
Pursuing DEI Initiatives in Military Justice
By Members of the JAG Corps’s Diversity, Equity, and Inclusion Council
When the Diversity, Equity, and Inclusion Council (DEIC) kicked off its inaugural meeting in 2020, it was clear that its mandate was meant to include every core discipline in the Judge Advocate General’s (JAG) Corps. Representatives with a wealth of experience in each core discipline were in attendance—military justice was no exception. The DEIC included (and still includes) the Chief of the Trial Defense Service, the Chief Trial Judge, and the Senior Judge on the Army Court of Criminal Appeals. Intentionally or otherwise, the inclusion of these individuals on the DEIC both ensured and enabled initiatives that would positively impact the effectiveness and fairness of our military justice practice. This article seeks to highlight three examples of those initiatives.
The first significant initiative proposed by the DEIC was in response to the Breonna Taylor tragedy. Breonna Taylor was a medical worker who was shot and killed by three plain-clothed police officers who forced entry into her apartment after midnight.1 While it remains unclear if they announced their status as police officers prior to attempting entry, the deceased’s boyfriend fired at the officers as they entered the home and the three officers returned fire thirty-two times.2 While none of the bullets injured her boyfriend, Breonna Taylor was killed when she was shot six times.3 Her apartment was never searched. The police were conducting a drug investigation and Ms. Taylor’s boyfriend was a suspect. One of the police officers was charged with wanton endangerment for firing into a neighboring apartment.4 This incident exacerbated racial tensions because Ms. Taylor was Black and the police officers were all White.
The ensuing uproar caused many jurisdictions to examine the justification for law enforcement officers to conduct a search of a home at night without announcing themselves, a so-called “no-knock” search.5 While exigent circumstances at the scene may require such tactics, in order to authorize their use when gaining authorization for a probable cause search, at least in the military context, specific written authorization from a military magistrate is required.6 Without that authorization, the law enforcement agent executing the warrant is required to announce their presence and to conduct the search in the daytime.7 While these procedures should reduce the risk of what happened to Breonna Taylor happening to someone associated with the Army, to decrease the risk even further, the DEIC asked the Trial Judiciary—the agency responsible for supervising military magistrates—to review these procedures. As a result, the entire Trial Judiciary considered the available options and potential ramifications, and determined the most prudent option was to require magistrate consultation with their supervising judge prior to authorizing a request for a nighttime or unannounced search of a dwelling place.8 Approval of these tactics is still required to be in writing.9
While these requests are rare, the extra scrutiny is worth the minimal
time and effort to consult a judge given the magnitude of the risk.
Another initiative pursued by the DEIC in the area of military justice
was determining whether practitioners received training in unconscious
bias.10 The Council determined that unconscious bias training is provided to practitioners at all levels, to include the trial judiciary.11 In response to presentations and discussions on the topic, trial judges have expressed increased willingness to expand the scope of voir dire while strictly adhering to its purpose, which is to gather information necessary to intelligently exercise challenges.12 This expansion could possibly include questions regarding whether the panel or individual member has received unconscious bias training; if they recalled whether the training alerted them to any unconscious biases they might harbor; whether or not they agreed with that assessment; and so forth. Beyond the answers themselves, the panel member’s willingness to discuss such issues may provide cause for further exploration of relevant topics to obtain information that may uncover a basis for challenge. As the Rules of Practice Before Army Courts-Martial require counsel to submit proposed voir dire questions in advance, an
artful counsel should provide ample justification for such questions in
their written request.13
A final example of the initiatives undertaken by the DEIC in the military justice context is in the area of retention and recruiting. As part of the JAG Corps’s efforts to build the bench and identify future leaders in the core disciplines, the current leaders in those disciplines are always on the lookout for new talent. With the support and encouragement of the DEIC, several affinity groups within the JAG Corps have blossomed, such as the Hispanic Mentor Group and the Asian-Pacific American Network, joining the long-running Buffalo JAG group. Members of the DEIC who are also leaders within the core disciplines have been able to speak to those affinity groups about the possibilities for career advancement in those core disciplines and provide advice to potential candidates that are interested in joining their ranks. These DEIC members have enthusiastically provided presentations to these groups, and in many cases joined the groups themselves. These efforts can be expected to have a tangible effect on the increased diversity within the upper echelons of those disciplines in years to come.
If you have an idea to promote DEI in military justice—or any other core discipline—contact a field board representative—or better yet, join one!14 The DEIC looks forward to working with and for the JAG Corps to promote and celebrate our diversity in the most inclusive and equitable ways we can. TAL
The Judge Advocate General’s Corps Diversity, Equity, and Inclusion Council is made up of Judge Advocate Legal Services leaders, to include officer, enlisted, and civilian personnel.
Notes
1. Breonna Taylor: What Happened on the Night of Her Death?, BBC News (Oct. 8, 2020), https://www.bbc.com/news/world-us-canada-54210448.
2. Id
3. Id.
4. Breonna Taylor: Police Officer Charged but not over Death, BBC News (Sept. 23, 2020), https://www.bbc.com/news/world-us-canada-54273317.
5. E.g., Christina Carrega & Peter Nickeas, Justice Department Limits Use of Chokeholds and “No-Knock”
Warrants, CNN,
https://www.cnn.com/2021/09/14/politics/justice-chokeholds-no-knock-warrant/index.html
(Sept. 14, 2021, 3:27 PM).
6. U.S. Army Trial Judiciary, Standard Operating Procedures for Military
Magistrates
sec. II, para. 2c (2021) [hereinafter
Magistrate SOP].
7. See U.S. Dep’t of Army, Form 3745, Search and Seizure Authorization (2002) (requiring annotation of the time of day of the execution; however, announcement of their presence is not specifically articulated on the form itself).
8. Magistrate SOP, supra note 6, sec. II, para. 2c.
9. Id.
10. See Unconscious Bias, U.C.S.F. Off. of Diversity & Outreach, https://diversity.ucsf.edu/resources/unconscious-bias (last visited
Jan. 18, 2022) (“Unconscious biases are social stereotypes about certain
groups of people that individuals form outside their own conscious
awareness. Everyone holds unconscious beliefs about various social and
identity groups, and these biases stem from one’s tendency to organize
social worlds by categorizing.”).
11. The aforementioned members of the Diversity, Equity, and Inclusion Council representing Trial Defense Service, the Trial Judiciary, and the prosecutorial arm all verified that their personnel had conducted such training within the past year. For example, the Trial Judiciary received the training alongside trial judges from the other services during their annual joint training in February 2022. The training was conducted by a civilian contracted provider and was 150 minutes in length.
12. Manual for Courts-Martial, United States, R.C.M. 912(d) discussion (2019).
13. U.S. Army Trial Judiciary, Rules of Practice Before Army
Courts-Martial
r. 15.1 (2022).
14. JAG Corps Diversity, Equity & Inclusion Council Field Board
Member Roster, JAGCnet, https://www.jagcnet2.army.mil/Sites/DivInc.nsf/homeContent.xsp?open&doctype=announcement&documentId=77212AE41FC44337852587030051C159 (last visited Jan. 19, 2022) (field board member assignments are available via login to Department of Defense members).