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
1. Breonna Taylor: What
Happened on the Night of Her Death?, BBC News (Oct. 8, 2020),
4. Breonna Taylor: Police
Officer Charged but not over Death, BBC News (Sept. 23,
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
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.
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,
(last visited Jan. 19, 2022) (field board member assignments are available via login to Department of