2022 (October Term)
United States v. Jeter, 84 M.J. 68 (Article 25(d)(2), UCMJ (2012), provides that when convening a court-martial, a convening authority shall detail as members thereof such members of the armed forces as, in his or her opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament; it makes no mention of race as one of the factors that may be considered in the panel selection process).
(using race when deciding who should be appointed to a court-martial venire panel is not permitted, even if an African-American servicemember is added to the panel in the case of an African-American accused, abrogating US v. Crawford, 15 CMA 31, 35 CMR 3 (1964)).
(to the extent that US v. Crawford, 15 CMA 31, 35 CMR 3 (1964), allows a convening authority to depart from the factors present in Article 25(d)(2), UCMJ, by seeking, even in good faith, to use race as a criterion for selection in order to make the members panel more representative of the accused's race, it has been abrogated by Batson v. Kentucky, 476 US 79 (1986)).
(whenever an accused makes a prima facie showing that race played a role in the panel selection process at his court-martial, a presumption will arise that the panel was not properly constituted; the government may then seek to rebut that presumption).
(Article 25, UCMJ, does not present an exhaustive list of the factors that may be considered in the court-martial panel selection process; other factors that are also not listed in Article 25, UCMJ, such as operational necessity or availability of prospective members, have long been recognized as valid considerations; and unlike race, none of these other factors have ever been expressly disavowed by the Supreme Court).
(race is an impermissible criterion for selection of jurors; a person's race simply is unrelated to his or her fitness as a juror).
(equal justice under law requires a criminal trial free of racial discrimination in the jury selection process).
(Fifth Amendment equal protection includes the right to be tried by a jury from which no cognizable racial group has been excluded).
(neither in civilian courts nor in a court-martial does the Fifth Amendment guarantee an accused jurors or members who are of the same race).
(the Equal Protection Clause forbids the States to strike black veniremen on the assumption that they will be biased in a particular case simply because the defendant is black; the statement is no less true as it pertains to the military justice system when the convening authority is allowed to add some arbitrary number of African-American members because they and the accused share the same race or ethnic group).
(race shall not be a criterion in the selection of court-martial members; it is impermissible to exclude or intentionally include prospective members based on their race).
(in this case, appellant made a prima facie showing that gave rise to a presumption that race was allowed to enter the selection process for his court-martial in violation of his equal protection rights where the circumstances included a racial identifier in the questionnaires, other evidence, and importantly, the command's belief that prior case law that authorized the consideration of race was still good law).
(in this case, the use of a race-conscious component in the selection process combined with the absence of any evidence in the record addressing how and by whom selection was made from this pool of members leaves us to seriously question whether the impermissible criterion of race might have found its way into the selection process, possibly even before the convening authorities made their selections; although the government obtained affidavits from the SJA, the convening authority, and the acting convening authority regarding this matter, for all intents and purposes those affidavits simply reflected that they could not recall how the venire panel was chosen; accordingly, an unrebutted inference exists that appellant's constitutional right to equal protection under the law was violated when the acting convening authority presumptively used a race-conscious selection process for panel members).
2019 (October Term)
United States v. Bess, 80 M.J. 1 (while racial discrimination is clearly unconstitutional, absent intentional racial discrimination or an improper motive or criteria in the selection of members, the mere fact a court-martial panel fails to include minority representation violates neither the Fifth Amendment nor Article 37, UCMJ ‘s prohibition against unlawful command influence).
(there is no procedure to ensure a particular racial composition in any court in the United States, and the legal precedent is to the contrary).
(there is no constitutional or statutory right to have members of your own race (or any other) included on either a court-martial panel or a civilian jury).
(neither in civilian courts nor in a court-martial does the Fifth Amendment guarantee an accused jurors or members who are of the same race; what the Fifth Amendment provides is not a promise to include, but rather protection against intentional racial discrimination through exclusion).
(in this case, the convening authority’s selection of members did not violate the equal protection requirements of the Fifth Amendment for failing to include African-American on appellant’s court-martial where (1) the court-martial questionnaires failed to include information about race and appellant, an African-American, did not inquire about race during voir dire, (2) there is no constitutional or statutory right to have members of your own race (or any other) included on a court-martial panel, and (3) there was precisely zero evidence that the convening authority knew or had reason to know the race of the persons he detailed to the court-martial or engaged in any impropriety).
(an accused has an absolute right to a fair and impartial panel, guaranteed by the Constitution and effectuated by Article 25, UCMJ’s member selection criteria and Article 37, UCMJ’s prohibition on unlawfully influencing a court-martial; neither of those articles requires affirmative inclusion).
(Article 25(d)(2), UCMJ, provides in relevant part 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; race is not one of the criteria; and by its terms, Article 37(a), UCMJ, expressly prohibits the convening authority from selecting members in an attempt to influence the outcome of the court-martial, on the basis of race or otherwise).
(the convening authority may consider race in detailing members if that consideration serves deliberately to include qualified persons, rather than to exclude members based on race; the word “may” does not equate to “must”).
(if a convening authority, in selecting the members to detail to a court-martial, intentionally excluded potential members on the basis of race, the convening authority’s actions would be unconstitutional under the Fifth Amendment; but that is entirely different than a mere failure to include, which is insufficient to support a Fifth Amendment claim).
(under the Equal Protection Clause, peremptory strikes of an African-American from the jury venire may establish a prima facie case of purposeful discrimination, and once that prima facie case is established, the burden shifts to the government to provide a race-neutral explanation for the strike; just as the Equal Protection Clause forbids the States to exclude black persons from the venire on the assumption that blacks as a group are unqualified to serve as jurors, so it forbids the States to strike black veniremen on the assumption that they will be biased in a particular case simply because the defendant is black; the core guarantee of equal protection, ensuring citizens that their State will not discriminate on account of race, would be meaningless were a court to approve the exclusion of jurors on the basis of such assumptions, which arise solely from the jurors’ race).
(the Constitution prohibits all forms of purposeful racial discrimination in selection of jurors; a defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor’s exercise of peremptory challenges at the defendant’s trial).
(even if appellant’s allegations that within a one-year period, the convening authority in this case detailed all-white panels in his case and three other cases constituted competent evidence, one year is not a significant period of time and would not establish a prima facie case for systematic discrimination in the selection of members in violation of appellant’s Fifth Amendment equal protections rights; the absence of minorities on a single panel does not make out a prima facie case of systematic exclusion and this is likewise true if there are allegations concerning several panels over a short period of time; even if no African- American members were included in appellant’s case, a fact that is unknown, and even if this fact is combined with the other anecdotal allegations raised by appellant, a prima facie case of exclusion based on race is not established; without contrary indication, the presumption of regularity requires an appellate court to presume that the convening authority carried out the duties imposed upon him by the UCMJ and the MCM; thus it is presumed that the convening authority acted in accordance with Articles 25 and 37, UCMJ, where in this case, the military judge stated that she had not seen any indication of any pattern of discrimination by excluding minority members in prior panels, or any indication of impropriety by the convening authority).
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
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).