(under the Equal Protection Clause, peremptory strikes of an African-American from the jury venire may establish a prima facie case of purposeful discrimination, and once that prima facie case is established, the burden shifts to the government to provide a race-neutral explanation for the strike just as the Equal Protection Clause forbids the States to exclude black persons from the venire on the assumption that blacks as a group are unqualified to serve as jurors, so it forbids the States to strike black veniremen on the assumption that they will be biased in a particular case simply because the defendant is black the core guarantee of equal protection, ensuring citizens that their State will not discriminate on account of race, would be meaningless were a court to approve the exclusion of jurors on the basis of such assumptions, which arise solely from the jurors’ race). (if a convening authority, in selecting the members to detail to a court-martial, intentionally excluded potential members on the basis of race, the convening authority’s actions would be unconstitutional under the Fifth Amendment but that is entirely different than a mere failure to include, which is insufficient to support a Fifth Amendment claim).
(an accused has an absolute right to a fair and impartial panel, guaranteed by the Constitution and effectuated by Article 25, UCMJ’s member selection criteria and Article 37, UCMJ’s prohibition on unlawfully influencing a court-martial neither of those articles requires affirmative inclusion). (in this case, the convening authority’s selection of members did not violate the equal protection requirements of the Fifth Amendment for failing to include African-American on appellant’s court-martial where (1) the court-martial questionnaires failed to include information about race and appellant, an African-American, did not inquire about race during voir dire, (2) there is no constitutional or statutory right to have members of your own race (or any other) included on a court-martial panel, and (3) there was precisely zero evidence that the convening authority knew or had reason to know the race of the persons he detailed to the court-martial or engaged in any impropriety). (neither in civilian courts nor in a court-martial does the Fifth Amendment guarantee an accused jurors or members who are of the same race what the Fifth Amendment provides is not a promise to include, but rather protection against intentional racial discrimination through exclusion). (there is no constitutional or statutory right to have members of your own race (or any other) included on either a court-martial panel or a civilian jury). 1 (while racial discrimination is clearly unconstitutional, absent intentional racial discrimination or an improper motive or criteria in the selection of members, the mere fact a court-martial panel fails to include minority representation violates neither the Fifth Amendment nor Article 37, UCMJ ‘s prohibition against unlawful command influence). (it does not violate the equal protection component of the Fifth Amendment to subject members of the Fleet Reserve, but not retired reservists, to military jurisdiction where the two groups are not similarly situated members of the Fleet Reserve receive retainer pay, are subject to recall at any time, and are required to maintain military readiness retired reservists, on the other hand, receive no pay until they reach statutory eligibility at age sixty, are not required to maintain any level of readiness, and can be recalled only in the event of a declaration of war or national emergency by Congress, and even then, only if other tiers of available manpower have been exhausted). (the initial question on any equal protection challenge is whether the groups are similarly situated, that is, are they in all relevant respects alike).
273 (the federal government is prohibited from violating a person’s due process rights by denying him the equal protection of the laws the core concern of equal protection is to act as a shield against arbitrary classifications that is, the government must treat similar persons in a similar manner). FIRST PRINCIPLES: Constitutional Matters: Equal Protection
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