2017 (October Term)
United States v. Riesbeck, 77 M.J. 154 (Article 25(d)(2), UCMJ, states when convening a court-martial, the convening authority shall detail as members thereof such members of the armed forces as, in his opinion, are best qualified for the duty by reason of age, education, training, experiences, length of service, and judicial temperament; there is nothing in Article 25, UCMJ, that permits selecting members to maximize the presence of a particular gender (or any other non-Article 25, UCMJ, criteria) serving on a court-martial).
(where selection of members on an impermissible basis is raised by the evidence, the government needs to present affirmative evidence of benign intent beyond a reasonable doubt; if not, the ready inference and legal consequence is that the improper selection was made to affect the result, a form of unlawful command influence).
(RCM 912(b)(3) provides an exception to the requirement that a timely motion challenging member selection be made where an objection is based on an allegation that the convening authority selected members for reasons other than those listed in Article 25, UCMJ).
(improper member selection can constitute unlawful command influence, which cannot be waived).
(gender is not an Article 25, UCMJ, member selection factor, and selection on the basis of gender is generally prohibited).
(even reasonable doubt concerning the use of improper panel selection criteria will not be tolerated in the military justice system).
(the member selection in this case was based in no small part on gender, which is error).
(courts-martial are not subject to the jury trial requirements of the Sixth Amendment, and, therefore, military members are not afforded a trial in front of a representative cross section of the military community).
(in the military justice system, the commanding officer, who refers charges to a court-martial that he or she has convened, selects the members and details them to it).
(a military defendant has a right both to members who are fair and impartial and the appearance of an impartial panel).
(a convening authority has significant discretion when selecting panel members based on the factors outlined in Article 25(d)(2), UCMJ; however, this discretion is not unfettered, particularly when the convening authority reaches beyond the statutory criteria in making his selection; neither race nor gender is included among Article 25, UCMJ, factors, and, to be sure, there are minefields of constitutional proportion aplenty lurking to upset selections based on gender or race).
(in selecting court members, a convening authority may depart from the factors present in Article 25, UCMJ, in one limited circumstance: when seeking in good faith to make the panel more representative of the accused’s race or gender; Article 25, UCMJ, does not preclude a commander from taking gender into account if he or she was seeking in good faith to assure that the court-martial panel is representative of the military population).
(where the seven-member panel that convicted and sentenced appellant for rape was composed of five women, four of whom were victim advocates, that is, persons trained to provide support and counseling to victims of rape and sexual assault, any suggestion that the selections were made to promote inclusiveness, ensure a representative panel, or for an otherwise benign purpose was specious; first, appellant was neither a woman nor a victim advocate, but rather was a male, accused of rape; second, as a matter of common sense, a panel composed of seventy percent woman was not statistically or otherwise representative, of a female population comprising less than twenty percent of the total pool of potential panel members; and third, the findings of the military judge made clear that the severe discrepancy between the percentage of available female panel members and the final makeup of appellant’s panel was not reflective of a good-faith attempt to either comply with the dictates of Article 25, UCMJ, or create a more representative or an inclusive panel, but rather was riddled with intentional efforts to maximize the number of women on the panel because the commanding officers thought, either consciously or unconsciously, that it was very important to have a large number of women on the panel in this sexual assault case; given that the government presented no evidence of benign intent, it appears that those involved in the selection process believed court stacking based on gender would influence the result of appellant’s court-martial; appellant raised the issue of improper member selection on the basis of gender, and the government failed to prove at all, let alone beyond a reasonable doubt, that the improper member selection process was not motivated by gender-based court stacking; additionally, the government has not met its burden of showing beyond a reasonable doubt that appellant received a fair trial from an impartial panel, free from the effects of unlawful command influence).
(bare statistical evidence showing over selection of a particular group, without other supporting facts, is generally not sufficient to raise the issue of court stacking).
(the actual ignorance of the convening authority does not insulate him or her from the errors or misconduct of his or her subordinates; where, in this case, the first three convening authorities intentionally and improperly selected a high percentage of women to the court-martial panel, the apparent ignorance of the final convening authority of the number of women present on the panel did not purge the error from the panel selection process, particularly where he was neither aware that the recommendations given to him were not based on Article 25, UCMJ, nor independently cognizant of what Article 25, UCMJ, required).
(a selection process geared to ensure a large number of women were placed on the panel in this case does not fall into the limited representativeness exception to Article 25, UCMJ, constitutes improper member selection, and is error).
(while the government is absolutely prohibited from assigning members to, or excluding members from, a court-martial panel in order to achieve a particular result as to findings or sentence (court stacking), not all improper member selection constitutes court stacking).
(even reasonable doubt concerning the use of improper panel selection criteria will not be tolerated in the military justice system; where improper selection criteria have been used to select members for a court-martial panel, such doubt must be resolved in favor of the accused).
(court stacking is a form of unlawful command influence, and has the improper motive of seeking to affect the findings or sentence by including or excluding classes of individuals on bases other than those prescribed by statute).
(once an issue of improper member selection has been raised, the burden shifts to the government to demonstrate beyond a reasonable doubt that improper selection methods were not used, or, that the motive behind the use of the selection criteria was benign).
(the government can rebut a claim of court stacking by showing administrative error, or by showing that, in fact, the convening authority included or excluded a certain group from panel membership in an attempt to comply with Article 25, UCMJ).
(the absence of direct evidence in the form of testimony of malintent and impure motive with regard to member selection does not mean that there is no evidence that the convening authorities or their subordinates were motivated by the intent to achieve a particular result as to findings or sentence; rather, as in other instances of asserted unlawful command influence, where the government fails to meet its burden to rebut the allegation of improper member selection, as a matter of law, appellant has established unlawful command influence).
(although there is nothing wrong with placing either women or victim advocates on panels deciding cases involving sexual assault, when the majority of panel members in a sexual assault case are both, it gives the panel the distinct appearance of being hand-picked by and for the government).
(against the backdrop of an atmosphere of external pressure to achieve specific results in sexual assault cases, a convening authority who purposefully selects a panel that is seventy percent female, most of whom are victim advocates, from a roster of officers that was only twenty percent female and a pool of enlisted that was only thirteen percent female, gives the appearance of hand-picking a panel for the government; the specter is raised that the person tasked with choosing appellant’s court-martial panel hoped to select members predisposed to understand the testimony).
(in cases involving the misapplication of Article 25(d), UCMJ, when the error derives from court stacking and unlawful command influence, an appellate court places the burden on the government to prove that the error was harmless beyond a reasonable doubt).
(in order to prevail on the issue of prejudice when the error derives from court stacking and unlawful command influence, the government must convince an appellate court, beyond a reasonable doubt, that appellant received a fair trial, free from the effects of unlawful command influence; and in the improper member selection context, any doubt must be resolved in favor of the accused).
2016 (October Term)
United States v. Bartee, 76 M.J. 141 (systemic exclusion of otherwise qualified potential members based on an impermissible variable such as rank is improper).
(a staff judge advocate can assist the convening authority in selecting members as long as this help does not improperly exclude any potential members).
(three factors are most helpful in evaluating any process for screening potential members; these include looking for: (1) improper motive to “pack” the member pool; (2) systemic exclusion of otherwise qualified members based on an impermissible variable like rank; and
(3) good faith efforts to be inclusive so courts-martial are open to all segments of the military community).
(lack of bad faith or improper motive is not dispositive in and of itself of the member selection process).
(a second court-martial panel was not tainted by the systemic exclusion of members based on rank during the initial selection process even though the second panel was identical to the first; the additional steps taken by the convening authority in connection with the second panel to include expressly considering the Article 25, UCMJ, selection criteria, personally selecting the panel only on the basis of that criteria, and confirming that he was cognizant of the roster of roughly 8000 Marines and sailors from which he could have drawn members, were sufficient to cure any systemic exclusion of members by rank).
2014 (September Term)
United States v. Sullivan, 74 M.J. 448 (in a general court-martial of an 0-6 appellant for wrongful use of cocaine, although the convening authority’s categorical exclusion of flag officers from the member pool violated Article 25, UCMJ, there was no appearance of an unfair panel, where (1) appellant was provided with a venire of fellow senior captains who were fully qualified to sit on a court-martial panel, (2) there was no basis to conclude that the convening authority selected the members on any factors other than their age, education, training, experience, length of service, and judicial temperament, (3) the record provided no indication that these panel members failed to fully, carefully, and appropriately consider appellant’s case in arriving at a verdict and sentence, and (4) the convening authority’s motivation in excluding flag officers from this case was not to stack the panel against appellant, but rather the convening authority relied on his experience in concluding that the flag officers would not be available to actually sit on the panel and hear the case).
(in a general court-martial of an 0-6 appellant for wrongful use of cocaine, the government met its burden of establishing that the categorical exclusion of flag officers from the venire panel was harmless, where (1) the convening authority’s motivation in excluding the flag officers was based on his belief that they would be unavailable to actually serve on the court-martial, (2) the selected members, all of whom were captains, met the Article 25, UCMJ, criteria, and (3) the members’ actions in the case demonstrated that they were fair and unbiased - the members stated that they would be impartial during voir dire; they were active participants throughout the trial who posed unbiased questions during the course of the trial; they deliberated over the course of three days before rendering a verdict, which included an acquittal of one charge; and they imposed a lenient sentence).
United States v. Ward, 74 M.J. 225 (the two member selection cases, United States v. Kirkland, 53 MJ 22 (CAAF 2000), and United States v. Bartlett, 66 MJ 426 (CAAF 2008), can be read in conjunction with one another, giving effect to both; simply put, an accused must be provided both a fair panel (Bartlett) and the appearance of a fair panel (Kirkland); accordingly, Bartlett and Kirkland are not mutually exclusive and can be construed in harmony with one another).
(even if an appellant establishes a violation of Article 25, UCMJ, there exists no remedy for that violation if the government shows it was harmless).
(in this case, where an instruction on nominating court-martial members by the convening authority erroneously restricted the personnel that could be nominated by his subordinate commands to officers in the grades of 0-5 and below and to enlisted members in the grades of E-7, E-8, and E-9 (ie, the subordinate commands could not nominate personnel who were 0-6 and above or E-6 and below), where all of the convening authority’s own staff was subject to nomination as potential court-martial members, where prior to the convening authority’s selection of panel members, his FJA provided him with a draft convening order that detailed potential members to serve on the panel, but also advised him that he could choose the panel members recommended or choose anyone else within his claimancy that he deemed best qualified, and where the convening authority approved the convening order as drafted, which detailed two 0-5s, three 0-4s, one E-8, and six E-7s to the court-martial, the government met the standards under both Bartlett and Kirkland; under Bartlett, the government showed that the convening authority used the instruction without an improper motive; in a post-trial affidavit, the convening authority stated that in selecting members for courts-martial, it was not his intent to systematically exclude anyone on the basis of rank alone and the record supported that assertion; both the FJA and the convening authority acknowledged the convening authority was aware he could select anyone he chose from within his command, including members of his staff, as long as they met the Article 25, UCMJ, criteria; also, the convening authority had each member of his staff, regardless of rank, fill out a court-martial member questionnaire upon arriving on station; in addition, because a stated purpose of the convening authority’s nomination instruction was to supplement the pool of potential panel members from the convening authority’s staff, and because the convening authority did not utilize the instruction to systematically exclude specific ranks from his consideration, the instruction was not used with an improper motive; finally, under Kirkland, there was no unresolved appearance in this case that potentially qualified court members were excluded; although the nomination instruction by its own terms excluded certain categories of eligible court members, that exclusion only applied to potential members from the subordinate commands, not to potential members from the convening authority’s staff; therefore, the member selection process utilized by the convening authority met the Bartlett criteria, and under Kirkland, it did not leave an unresolved appearance that potentially qualified court members were excluded from consideration; Appellant was not prejudiced by the selection process error caused by the nomination instruction that impermissibly excluded servicemembers from the member selection process by virtue of their rank).
2010 (September Term)
United States v. Gooch, 69 M.J. 353 (voir dire is the principal legal instrument used to ensure that those members who qualify for service as panel members can do so free from conflict and bias).
(from among officers eligible to serve on a court-martial panel, the convening authority shall detail as members thereof such members as, in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament).
(although the convening authority must personally select the court-martial members, he or she may rely on staff and subordinate commanders to compile a list of eligible members).
(three principles inform the screening of servicemembers for court-martial service: (1) an improper motive to pack the member pool will not be tolerated; (2) systemic exclusion of otherwise qualified potential members based on an impermissible variable such as rank, race, or gender is improper; and (3) an appellate court will be deferential to good faith attempts to be inclusive and to require representativeness so that court-martial service is open to all segments of the military community).
(screening potential members of junior rank or grade is not only proper; it is required by Article 25(d)(1), UCMJ).
(although not enumerated as an express criterion in Article 25, UCMJ, availability in the military context is an appropriate screening factor; this is implicit in the overall structure of the UCMJ, which is intended to promote justice as well as to assist in maintaining good order and discipline; it is also reflected in the language of Article 25(d)(1), UCMJ, contemplating that there may be circumstances, not at issue here, where service by officers junior to an accused cannot be avoided; for these reasons, availability is recognized as a valid consideration in member selection).
(availability cannot be used to mask exclusion or evade Article 25, UCMJ, criteria; and, where necessary or appropriate, it is also subject to judicial review at the trial level).
(the screening methodology used to select members of an African American accused’s court-martial panel, under which potential members were screened out based on possible personal knowledge of the case as well as a possible a personal relationship with the accused, was not impermissibly designed to exclude members of the accused’s race; although the screening methodology used had the effect of excluding three of the four eligible African American members from consideration by the convening authority, there was no evidence in the record of an improper motive to pack the member pool or to exclude members based on race).
(possible personal knowledge of the case and possible personal knowledge of the accused were not appropriate selection criteria with which to categorically exclude service as a panel member where (1) these categories are not express categories provided for by the Congress in Article 25, UCMJ; (2) the text of RCM 912 reflects the President’s intent that the appropriate mechanism for addressing potential bias or knowledge of the case and of the accused is through voir dire; (3) this point is particularly apt where the category of exclusion is conditional involving only the possibility of knowledge, let alone, knowledge that would preclude panel service - such selection criteria would act to exclude not only members with negative or positive biases toward an accused but also members with no view one way or the other who could potentially make it through the voir dire process; (4) the methodology used had the effect of significantly limiting the potential pool of officers from which the CA might apply the Article 25, UCMJ, criteria; and (5) by delimiting the pool of potential members in this way, the government arguably, although not purposefully, afforded itself the opportunity in effect to peremptorily challenge any officer at the command who might know appellant and have a favorable view of appellant’s professional service).
(however well-intentioned, the convening authority’s staff cannot exclude an entire class of eligible members based on mere possibilities; however, the staff need not include all eligible members or those with obvious conflicts).
(voir dire as provided for in Article 41, UCMJ, and regulated by the President under RCM 912, is the codal method for identifying and screening members based on potential bias, not categorical exclusion; voir dire provides an accused (and the government) with the necessary safeguards in the form of unlimited challenges for cause based on actual or implied bias and the liberal grant mandate on the record and supervised by the military judge).
(possible personal knowledge of the case or the accused, based on contemporaneous service alone, is not a proper basis for screening potential members under Article 25, UCMJ; the government is not entitled to exclude all potential members who might have a favorable (or unfavorable) view of an accused based on prior professional contact; possible personal knowledge of the accused or the case are not Article 25, UCMJ, criteria).
(the mechanism for addressing bias, the potential for bias, or the appearance of bias among panel members, is through voir dire and the use of causal and peremptory challenges).
(a nonconstitutional error in
class of potential members from appellant’s court-martial based on
service at his base because such persons might have knowledge of the
knowledge of appellant did not materially prejudice appellant’s right
to a fair
and impartial panel for two reasons; first, the Article 25, UCMJ,
applied to the potential pool of members forwarded to the CA, who could
from the list or from others as he deemed appropriate and who
selected the members; and second, the panel by which appellant was
fair and impartial, where the military judge conducted a rigorous and
voir dire process, in which he properly applied the law, including
consideration of actual and implied bias).
United States v. Bartlett, 66 M.J. 426 (the Secretary of the Army impermissibly contravened the provisions of Article 25(d)(2), UCMJ, 10 USC § 825(d)(2), which requires a convening authority to select court-martial members best qualified for duty based upon age, education, training, experience, length of service, and judicial temperament, by issuing a regulation that exempted from court-martial service officers of the Medical Corps, Medical Specialist Corps, Army Nurse Corps, Dental Corps, Chaplain Corps, Veterinary Corps, and those detailed to Inspector General duties).
United States v. Townsend, 65 M.J. 460 (law enforcement personnel are not per se disqualified from service as court members; if status as a law enforcement officer is not a disqualification, it follows that a mere familial relationship with a member of the law enforcement community creates no greater basis upon which to disqualify a member than law enforcement status itself).
(lawyers are not per se disqualified as court-martial members unless they have served in one of the capacities explicitly set forth as a disqualification in the UCMJ; it follows that one who only aspires to become a lawyer is not disqualified and presents no greater threat to the fairness of a proceeding than does a court member who is a fully trained and licensed attorney).
United States v. Sonego, 61 M.J. 1 (voir dire is critical to the fairness of a court-martial; a defendant’s right to a fair trial is undermined if panel members fail to answer material questions honestly during voir dire).
United States v. Dowty, 60 MJ 163 (Article 25(d)(2), UCMJ, provides that when convening a court-martial, the convening authority shall detail as members thereof such members of the armed forces as, in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament; no member of an armed force is eligible to serve as a member of a general or special court-martial when he is the accuser or a witness for the prosecution or has acted as investigating officer or as counsel in the same case; simply stated, this statute mandates the selection of members who are best qualified).
(three factors are most helpful in evaluating the propriety of any screening of servicemembers for eventual consideration by the convening authority for court-martial service; first, an improper motive to pack the member pool will not be tolerated; second, systemic exclusion of otherwise qualified potential members based on an impermissible variable such as rank is improper; and third, this Court will be deferential to good faith attempts to be inclusive and to require representativeness so that court-martial service is open to all segments of the military community).
(even though the record showed that the assistant staff judge advocate solicited volunteers to serve as court members, appellant failed to meet his burden of establishing the improper exclusion, with an improper motive, of qualified personnel from the selection process; the transparency of the assistant staff judge advocate in seeking volunteer members suggests that he had no improper motive in his attempt to develop a pool of potential members).
(it was error to inject into the panel selection process the irrelevant variable of a servicemember volunteering to be a member, and the novel method of soliciting for members in the Plan of the Week to identify volunteer members for the panel pool is rejected; this conclusion is consistent with the current federal rule that the use of volunteers violates both the letter and spirit of the Jury Selection and Service Act of 1968, 28 U.S.C. §§ 1861-1869 and its requirement of random selection).
(the practice of soliciting only volunteers for the panel pool is simply condemned).
(in this case, there was no showing of an improper motive by anyone involved in the nomination or selection of the members; the preliminary screening variable of volunteerism was irrelevant because there was no showing that this variable operated to exclude a discernable group or to diminish the representative nature of the pool, and the use of volunteers did not thwart the congressional procedure in Article 25(b)(2) for the selection of best qualified members because the convening authority personally selected the panel and applied the criteria of Article 25(d)).
(the failure of the assistant staff judge advocate to include the Article 25(d)(2) member selection factors of experience and education in his advice to the convening authority did not taint the convening authority’s personal selection of the members where the convening authority expressly stated that he reviewed the court-martial member questionnaires in making his selection and these questionnaires addressed both the factors of each member’s experience and education).
(the convening authority cured any error arising from the preliminary screening of the court-martial member panel pool using the impermissible variable of volunteerism by personally selecting the panel and applying the criteria of Article 25(d)).
United States v. Mack, 58 MJ 413 (only those service members who are detailed to a specific court-martial can serve on that court-martial panel; when the convening orders and the record make it clear that an individual who served on a court-martial panel was never detailed to do so, we have held that the court-martial was improperly constituted and the findings must be set aside).
(when the record reflects an ambiguity as to whether an individual was detailed to serve at a particular court-martial, we look to the intent of the convening authority with respect to service of that member on that court-martial panel; when there is an ambiguity but no evidence that the convening authority’s intent was to the contrary, the construction of the convening orders by the participants of the trial is controlling).
(no prejudicial plain error occurred in the process of excusing members and adding two members, each of whom had been specifically identified by the convening authority to be added in the occurrence of a triggering event, notwithstanding that the trial counsel did not address the circumstances of the triggering event on the record; on the contrary, the record is consistent with the occurrence of a triggering event, and the government was not obligated to produce evidence of the actual operation of the triggering mechanism absent evidence in the trial record or adduced after trial raising reasonable questions regarding the triggering mechanism).
United States v. Wiesen, 57 MJ 48(Recon.)(Sixth Amendment right to trial by jury does not apply to courts-martial; who may serve on a court-martial is governed instead by Article 25, Uniform Code of Military Justice, 10 USC § 825, which permits the convening authority – the official who has exercised prosecutorial discretion in the case – personally to select the members of the court-martial panel).
United States v. Benedict, 55 MJ 451 (reliance upon staff work does not undermine a military judge’s finding of fact that the convening authority personally selected the members of the court-martial).
(the convening authority may rely on his or her staff to nominate court members, and findings that the convening authority personally selected members are not undermined by the fact that the convening authority selected nine perspective members put forth in an order prepared by the Chief of Staff).
(a military judge’s finding of fact that the convening authority personally selected the members of the court-martial was supported by: (1) testimony from all the witnesses in the case indicating that it was the convening authority’s decision that resulted in the selection of the members; (2) testimony indicating that the convening authority personally affirmed that he selected the members; and (3) the convening authority’s personal signature on the convening order).
United States v. Kirkland, 53 MJ 22 (where chart used in seeking court member nominees did not provide any place to nominate court members below the grade of E-7, where no enlisted members were nominated below the grade of E-7, where no nominees below the grade of E-7 were presented to the convening authority, and where no individuals below the grade of E-7 were selected to serve as members, the exclusion of potentially qualified members was improper and the military judge erred in denying the defense request for a new court-martial panel).
(even where a convening authority does not use rank as a criterion in the selection process, an unresolved appearance that potentially qualified court members below the grade of E-7 were excluded made reversal of the sentence appropriate to uphold the essential fairness and integrity of the military justice process).
United States v. Roland, 50 MJ 66 (members may not be selected or systematically excluded solely on the basis of rank).
(nomination process which does not systematically include or exclude certain members is a reasonable means of assisting the convening authority).
(nomination process which improperly includes or excludes certain members will be reviewed to ensure that actual selection of members is not tainted).
(no indication of improper selection where record established E-4’s and below were not categorically excluded although not identified as potential members during the nomination process, and convening authority knew he was not limited to selection of those grades reflected among the nominations).
United States v. Bertie, 50 MJ 489 (the intent and purpose of the convening authority in selecting individuals to serve as court-martial members is an essential factor in determining compliance with Article 25(d)(2), UCMJ).
(although not entitled to a panel that represents a cross-section of the eligible military population, an accused is entitled to a panel selected without deliberate exclusion of lower grades and ranks (other than those junior to the accused), and one which is not purposefully stacked in that case with members of senior grades or ranks to achieve a desired result).
(make up of particular court-martial panel or of several panels over time might circumstantially suggest impermissible intent on the part of the convening authority, but other evidence in the record must be considered to determine whether an intent to stack the court actually existed).
(although make up of particular court-martial panel or of several panels over time might circumstantially suggest impermissible intent on the part of the convening authority, other evidence showed that convening authority intended to comply with Article 25 criteria where: (1) the SJA specifically advised the convening authority of proper selection criteria; (2) the convening authority acknowledged in a written memorandum that he used Article 25 in selecting members; and (3) appellant proffered no evidence to rebut government’s showing of proper selection).
(reasonable doubt concerning the use of improper court member selection criteria will not be tolerated; but no such doubt exists on this record where there was an extensive hearing and ample evidence of lawful conduct on the part of appellant’s convening authority).
United States v. Gray, 51 MJ 1 (fact that no women were selected to sit on court-martial panel was inadequate by itself to establish that appellant was denied his rights under the Fifth and Sixth Amendments or to show plain error; see United States v. Loving, 41 MJ 213, 283-287 (1994), aff’d on other grounds, 517 U.S. 748 (1996)).
(limiting eligible enlisted members of a court-martial to other than those who are in the same unit as the accused is not arbitrary or capricious).(convening authority is not prohibited from selecting court-members pursuant to Article 25(d), UCMJ, for capital trial for offenses that occur on a military reservation but where there is concurrent jurisdiction with a state authority; see United States v. Loving, 41 MJ 213, 297 (1994), aff’d on other grounds, 517 U.S. 748 (1996)).