By Andrew Dyer / The San Diego Union-Tribune
SAN DIEGO — Jury selection Monday in the court-martial of a San Diego-based Navy SEAL charged with multiple war crimes, including premeditated murder, resulted in a potential panel of seven Marines and five sailors.
But the jury panel isn’t set yet. The prosecution and defense can challenge any of them Tuesday during the second phase of jury selection.
Chief Special Warfare Operator Edward R. Gallagher is charged with killing a wounded Islamic State fighter during a 2017 deployment to Iraq. He also faces charges related to allegations that he shot two civilians and, at other times, fired indiscriminately into crowds of noncombatants, prosecutor said.
Gallagher denies the charges and has pleaded not guilty. He is being tried at a military courthouse at Naval Base San Diego.
The jury panel as of Monday afternoon consisted of 11 men and one woman, a Marine major. Half of the members of the panel are officers and half are enlisted personnel, including a Navy SEAL senior chief and five senior enlisted Marines.
All but one of the 12 said they had served in combat. Five said they had personally faced “the enemy” on the battlefield.
On Tuesday both the prosecution and the defense will be able to challenge individual panelists “for cause,” such as perceived bias, as well as use peremptory challenges to dismiss jurors without a stated cause.
Normally each side would have one peremptory challenge.
But recently it was found that the prosecution had launched a leak investigation that involved trying to track emails sent to the defense attorneys. That delayed the trial and violated Gallagher’s rights, a judge said, so he gave the defense side three peremptory challenges of jurors instead of one.
If the challenges are used, the trial can proceed with as few as five jurors, said Navy spokesman Brian O’Rourke.
Prosecutors and defense attorneys spent Monday questioning each of the 12 panelists about their experiences in combat and with the military justice system.
All the jurors said they had seen news coverage of the case, so each was asked to what extent they followed the case. Three said they had seen coverage on Fox News, which has hosted Gallagher’s family and advocates on its programs several times in the months leading up to the trial.
Jury selection continues Tuesday morning. If there are at least five panelists remaining after challenges, opening arguments could begin as early as midday. If not, the convening authority in the court martial — the commander of Navy Region Southwest Rear Adm. Bette Bolivar — would have to provide more panelists and the selection process would resume.
The trial is scheduled to last three weeks.
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