108 - Devilish Dates: Panel Randomization and Kershaw

Send us Fan MailThis week, Sam and Trevor focus on United States v. Kershaw, No. 25-0177/AF, 2026 CAAF LEXIS 396 (C.A.A.F. Apr. 30, 2026), another divided Court of Appeals for the Armed Forces (CAAF) decision. Before diving into Kershaw, Sam briefly highlights that the portions of the Manual for Courts-Martial that were changed in Annex 2 of Executive Order (EO) 14103 apply to offenses that occurred after December 27, 2023 (the other Annexes in this EO have different effective dates). She discusses this effective date in the context of panel randomization under RCM 911. Specifically, the plain text applying this rule change contradicts the Military Judge's Electronic Benchbook and the Air Force Instructions (which themselves conflict too): neither arraignment nor referral date dictate when the new randomization rule applies. The offense date does. Thus, keep an eye out for which rules apply when; Annex 2's application is a little odd! If you disagree or have seen something different in practice, please let us know! Following that discussion, the two walk through the Kershaw decision. In Kershaw, the CAAF holds that a Court of Criminal Appeals can affirm a conviction by using "variance," even when the trier of fact did not do so. The duo explain how CAAF's precedent, and the text, don't conform with that reading. They go on to provide some hopefully helpful tips for trial practitioners in light of the CAAF's new rule, but are cognizant of the new territory charted by the Kershaw decision. Send us your questions, comments, or concerns at [email protected].