SAN ANTONIO—The trial of the second Air Force general in history to face court-martial hit a snag June 19 as the court ran out of candidates for the eight-seat jury—called a panel in the military—whose members must either be higher-ranked than the defendant or pinned on the same rank before him.
Of the 16 generals considered so far, nine have been dismissed and seven cleared to serve on the panel for Maj. Gen. Phillip Stewart, who on March 21 pleaded not guilty to charges including sexual assault, conduct unbecoming an officer, and controlling an aircraft within 12 hours of consuming alcohol.
The potential jurors included two four-star generals, 12 three-stars, and two two-stars. Two lead Air Force major commands, four are MAJCOM deputy commanders, one is a Numbered Air Force commander, several are members of the Air Staff, and others are the heads of important centers across the country.
It is a mix never seen before in an Air Force court-martial. The only other Air Force general to have been court-martialed, Maj. Gen. William Cooley, was convicted of abusive sexual contact in 2022 by military judge alone.
Stewart was relieved as the head of the 19th Air Force, which oversees all Air Force pilot training, by Lt. Gen. Brian Robinson, the head of Air Education and Training Command (AETC), on May 9, 2023. If convicted on all charges, Stewart could face up to 60 years in prison, according to his defense counsel.
The two-star’s trial began with administrative proceedings at Joint Base San Antonio-Fort Sam Houston, Texas, on June 17, followed by two days of “voir dire,” where the trial counsel and defense evaluate potential panel members for bias that could cloud their judgment.
Of the 16 considered for panel service, three generals were dismissed over the weekend, while 13 traveled to Texas to take part in a group voir dire session followed by individual voir dire.
“This is my first time speaking with 13 general officers,” trial counsel Lt. Col. Peter Havern said during group voir dire.
Stewart requested a trial by a panel of his peers back in March. But the field of candidates is relatively small: there are just 39 lieutenant generals and 11 generals in Active-Duty service, plus a small group from among 68 major generals who pinned on before Stewart.
The defense team also has a wide margin to challenge the jurors’ impartiality. Besides being the right rank, panel members must also be considered free of actual bias and implied bias. Actual bias might take the form of a member explicitly stating a biased view or if they have a close connection with the defendant.
But the standard for implied bias is more vague. A defense team could make a case for implied bias if a panel member has served as a convening authority (the ranking officer overseeing a court-martial) for a trial involving sexual assault, or even if they received extra training for how to oversee such cases.
“The implied bias standard is basically would a neutral member of the public who knows all the facts of the case have concerns about that person sitting as a court member?” retired Col. Don Christensen, a former chief prosecutor of the Air Force who is not involved in the case, told Air & Space Forces Magazine. “What’s that mean? Who knows … it’s pretty wild wild west when it comes to implied bias.”
A long-standing principle called the “liberal grant mandate” means military judges are mandated to err on the side of granting a challenge rather than deny it and risk the perception of bias.
Throughout the voir dire process, attorneys scrutinized the generals’ past service as convening authorities; their past interactions with Stewart; their professional and personal relationships with each other; and their beliefs and opinions on alcohol, adultery, and consent.
“We grew up in the Air Force together,” one of the court members said about his fellow generals, none of whom said they had a close relationship with Stewart, though nearly all had occasional professional interactions with him in the past.
“If I’ve drank bourbon twice with you, it’s a close professional relationship,” said another general, who said he had that relationship with several fellow panel members but not with Stewart.
At times the voir dire process became deeply personal, with general officers sharing stories of family members, loved ones, and staff members who had experienced sexual assault. That kind of experience was often cited by Stewart’s defense team as a basis for implied bias.
Another factor the defense team frequently cited as grounds for bias was whether the court member had a close working relationship with a widely known major general who the trial counsel plans to call as a witness. Still another was whether or not the court member expected Stewart to testify, with the defense citing the possibility that if Stewart does not testify it would color panel members’ judgement.
Context
Throughout voir dire, attorneys on both sides noted multiple times the importance of public perception that the trial is conducted fairly and impartially. In the past, general officers such as Maj. Gen. Thomas Fiscus and Brig Gen. Richard Hassan were demoted or allowed to retire rather than face court-martial after investigations found they had made inappropriate sexual advances on 13 women, or sexually harassed their subordinates, respectively.
Not until Cooley’s trial in April 2022 did any Air Force general officer endure a court-martial, but Stewart’s defense team fears the pendulum has swung too far.
“It’s looking more and more like a kangaroo court,” defense team member Jeffrey Addicott told Air & Space Forces Magazine in January, about three months after the presiding officer at Stewart’s preliminary hearing recommended the case not proceed to court-martial.
Christensen described the presiding officer, Col. Brian Thompson, as a highly-experienced former prosecutor, but Lt. Gen. Brian Robinson, head of Air Education and Training Command, decided to refer all charges to court-martial anyway. In January, Stewart filed a request to retire in lieu of court-martial, but the request was denied.
In the past, “you would often see, particularly general officers, get slapped on the wrist and then retire quietly,” Christensen at the time. “This one can’t be retired quietly because there is a lot of media interest in it.”
Christensen said the close scrutiny of court members could be part of the defense team’s strategy.
“I think they’re trying to say ‘we don’t think you can seat eight members,’ and they can make it so painful for the government that they let him retire,” he said. “I could be wrong but the large part of me thinks the strategy is: ‘the Air Force never had to seat a panel of general officers, let’s see if you can do it.’”
Next Steps
With just seven panel members, it will be at least a few more days before the court-martial can select an eighth member and then proceed to opening arguments. After court went into recess on June 19, the trial counsel sent Robinson, the convening authority, a list of new members to consider for jury duty.
Assuming Robinson can detail those members early in the morning of June 20 and notify them immediately, those members have until 5 p.m. Central Time on June 20 to fill out a pre-voir dire questionnaire, then report to the Fort Sam Houston courtroom by 8:30 in the morning on June 22. The full panel is expected to reconvene at 8:30 in the morning on June 24.
It was not clear how many more generals were included in this second set, but even if the court reaches eight panel members, the defense can still opt to go judge alone.
Though they had to travel far from demanding and important jobs, only one of the first 13 generals who participated in voir dire early this week expressed any frustration at being detailed as a court member, and just two expressed any doubt that they could be free and impartial, despite numerous opportunities to get out of jury duty by expressing otherwise.
Some of that apparent willingness to serve may be out of a wish to help shape the image of the Air Force in a high-visibility trial, Christensen said, but some of it may also be borne out of their own past experience as convening authorities.
“They have all selected panels to do exactly what they’re doing and they all heard people whining ‘I can’t do this, let me off, general’,” he said. “And they’ve all had to say, ‘no, this is your duty.’ So I would hope that they would want to stay.”
Stewart’s charges include six specifications:
- Two specifications of violating Article 92 of the Uniform Code of Military Justice, failing to obey a lawful order or regulation, first for allegedly failing “to refrain from pursuing an unprofessional relationship” and second for allegedly controlling an aircraft within 12 hours after consuming alcohol. The first specification allegedly dates to March 6 and May 9, while the second allegedly dates to on or about April 14 at or near Altus Air Force Base, Okla.
- Two specifications of violating Article 120 of the UCMJ, which covers rape and sexual assault, for alleged nonconsensual sexual contact, dated on or about April 13 and 14 at Altus.
- One specification of violating Article 133 of the UCMJ, conduct unbecoming an officer, at or near Denver, Colo., on or about March 6 and March 8, where it alleges that Stewart, “while on official travel, wrongfully invite [redacted] to spend the night alone with him in his private hotel room[.]”
- And one specification of violating UCMJ Article 134, which refers to “all disorders and neglects to the prejudice of good order and discipline in the armed forces, of a nature to bring discredit upon the armed forces,” for allegedly engaging “in extramarital conduct” on or about April 13 and 14 at or near Altus.