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
excluding a
class of potential members from appellant’s court-martial based on
dates of
service at his base because such persons might have knowledge of the
case or
knowledge of appellant did not materially prejudice appellant’s right
to a fair
and impartial panel for two reasons; first, the Article 25, UCMJ,
criteria were
applied to the potential pool of members forwarded to the CA, who could
select
from the list or from others as he deemed appropriate and who
personally
selected the members; and second, the panel by which appellant was
tried was
fair and impartial, where the military judge conducted a rigorous and
diligent
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).
2005
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).
2004
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)).
2003
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).
2002
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).
2001
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).
2000
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).
1999
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).