IN THE
CASE OF
UNITED
STATES, Appellee
v.
Thomas W.
DOWTY, Lieutenant
No.
03-0152
Crim. App.
No.
9901701
Argued
Decided
GIERKE,
J., delivered the opinion of the Court, in which CRAWFORD, C.J., BAKER,
and
ERDMANN, JJ., joined. EFFRON, J., filed
a separate dissenting opinion.
Counsel
For Appellant:
Lieutenant
Marcus N. Fulton, JAGC, USN (argued).
For Appellee: Captain Glen R. Hines, Jr., USMC,
(argued); Colonel R. M. Favors, USMC, Commander Robert P. Taishoff, JAGC, USN, and Lieutenant Ross
W. Weiland, JAGC, USNR (on brief).
For Amicus Curiae:
Kevin
J. Barry, Esq. (argued); Philip D. Cave, Esq., Eugene
R. Fidell, Esq., and Stephen A. Saltzburg,
Esq. (on brief), for the National Institute of Military Justice.
Military Judge:
R. L.
Rodgers
This opinion is subject to
editorial
correction before final publication.
A
general court-martial composed of officer members convicted Appellant,
contrary
to his pleas, of three specifications of
larceny and one specification of fraud against the United States in
violation
of Articles 121 and 132, Uniform Code of Military Justice [hereinafter
UCMJ], 10
U.S.C. §§ 921 and 932 (2000), respectively.
The adjudged and approved sentence provides for Appellant to pay
a
$30,000.00 fine and to be dismissed from the naval service. The Court of Criminal Appeals affirmed the
findings and sentence.
This
Court granted review of the following
issue:
WHETHER
APPELLANT’S COURT-MARTIAL
WAS PROPERLY CONVENED WHERE THE MEMBERS POOL WAS CREATED THROUGH
SELF-SELECTION
AND NO MEMBERS WERE SELECTED BY THE CONVENING AUTHORITY ACCORDING TO
THE
CRITERIA CONTAINED IN ARTICLE 25, UNIFORM CODE OF MILITARY JUSTICE.
The
lower court properly characterized this
issue as “unique in military jurisprudence.”
I. FACTS
A. General
background of Appellant’s offenses
and the extended delay of
the trial on the
merits
We
outlined the general nature of the charges that Appellant now stands
convicted
of when his case was before us in 1998 on an interlocutory appeal.
While
serving on active duty in the Medical Service Corps of the Navy,
appellant allegedly conducted a private business named Health Care
Associates,
under which he submitted claims for reimbursement to the
On
September 28, 1993, the Defense Fraud, Waste, and Abuse Hotline
received an
anonymous allegation that claims submitted by appellant’s company to
the
Government between 1989 and 1992 were false and forged; that such
claims had
resulted in payment by the Government of $15,000 for services that
appellant’s
company never had rendered; and that appellant had deposited the checks
paid by
the Government for these fraudulent claims into his personal
checking
account. The caller subsequently was
identified as appellant's former wife.
. . . .
[Eventually
t]he charges were referred to general
court-martial.
The
case was hotly contested from the outset with extensive interlocutory
litigation at the lower court, in United States District Court, and at
this
Court. The lower court’s opinion
documents the prior appellate history. 57 M.J. at 708. This
extended appellate litigation resulted in postponing the trial on the
merits. While this case began on
B. The
novel panel selection process
The genesis of the present issue
is in a
routine task frequently facing the command staff judge advocate - how
to
identify a pool of members from which the CA will select the
court-martial
panel. Before 1998, the “standard
procedure for selecting members” at the Bureau of Medicine and Surgery
(BUMED)
was for department heads to nominate the best qualified officers from
their
respective departments. This is similar
to the accepted and traditional subordinate-commander nomination model
that is
frequently followed.
In the summer of 1998 as
Appellant’s trial
was to continue on the merits, the Assistant Staff Judge Advocate
(ASJA) of
BUMED in his own words “came up with the idea of publishing a Plan of
the Week
notice” requesting volunteers to serve as court-martial members. He took this admittedly “novel approach”
because the BUMED command “had a severe need for a members
pool.” His concern was to obtain members
for Appellant’s case and potentially three other cases in the next
several
months.
With
the approval of the Staff Judge
Advocate (SJA) and other military supervisors, the ASJA presented the
following
announcement in the BUMED Plan of the Week for four days,
3. LEGAL
NOTE:
MEMBERS NEEDED. Would you like to
serve as a member in a general or special courts-martial in the greater
The record does not
address whether the CA had actual knowledge of this solicitation for
volunteer
members, but it does establish that he did not assume command until
The
lower court’s opinion reports the chain
of events that followed:
Out of
approximately 140 officers in BUMED, 50 or so officers and enlisted
personnel
responded to the solicitation. The ASJA
provided the interested volunteers with members’ questionnaires. He received back 47 completed
questionnaires. He separated out the
enlisted volunteers, leaving him with 22 officer volunteers. The ASJA contacted 21 of the 22 officers who
volunteered. He testified that he
deleted two volunteers from the nominee pool due to “concerns” he had
“because
of their close relationship with legal” and that it would be therefore
unfair
for them to sit on the jury.
The ASJA
contacted the remaining 20 volunteers and, without providing any
details, such
as the name of the accused or the amount of time the volunteers might
be
required, asked each of them if they would be “available” to serve on a
court-martial during the first week of December 1998.
The ASJA rejected another five volunteers
because they said they were not “available.”
Thus, the ASJA “combed” down the 140 member officer pool at
BUMED to 15
qualified and available volunteers. From
these 15, the ASJA nominated nine officers that he believed were best
qualified
to serve as members on Appellant’s court-martial.
57 M.J. at 713
(footnotes and citations
omitted).
C. The
advice the CA
received as he selected
the panel
After
the ASJA had compiled a list of
qualified and nominated members, he submitted it to the SJA for his
review and
finally to the chief of staff who approved it.
The ASJA then forwarded this list of 15 qualified members and 9
nominated
members to the CA. The folder of
information submitted to the CA included the following:
1)
The Court Member Questionnaire for each of the 15 nominated
members;
2) Two
separate documents with each member’s
name and a blank space to the left. On one
of these documents the ASJA indicated by a check mark his nine nominees
for the
panel. The other document was
substantially a mirror image of the first except the blank space to the
left of
every name was not marked; on this document the CA was to indicate by
his check
mark his personal selection of the panel members; and
3) Written
advice to the CA regarding his
personally selecting the members.
This written advice
contained this guidance:
As
convening authority, you must
select personnel qualified by age, training, length of service, and
judicial
temperament; the attached court-martial questionnaires for each
candidate may
be useful in making this determination.
I believe that any of the candidates listed below are acceptable. Please select up to nine individuals from the
list by initialing each of your choices.
If you believe that other officers should be selected, MED-OOL
will
solicit additional members from throughout the command.
The AJSA did not
personally brief or discuss further with the CA the selection of the
members. Specifically, the ASJA did not
disclose to the CA that he used a “novel” method to select potential
members,
that the list of nominated members consisted solely of volunteers, or
that
non-volunteers were specifically excluded from the pool of potential
members.
In
selecting the members, the CA signed his
name at the bottom of the page to indicate his selection of nine
members. That document also has a check
mark opposite
each of the officers he selected. Eight
of the individuals selected by the CA were individuals that the ASJA
had
personally recommended. Although part of
the pool of fifteen qualified members, the ninth individual selected by
the CA
for the panel was not personally recommended by the ASJA.
The ninth member selected by the CA was also
among the original group of volunteers.
Eventually, the CA signed a convening order amendment that
contained
this list of nine officers. Two of the
officers selected as members were lieutenants junior in rank to
Appellant.
At
this point, the panel was not set in stone, and there was another
convening
order amendment that added four new officer members.
None of these new panel members were
volunteers who responded to the Plan of the Week announcement. This amendment also deleted the two volunteer
members who were junior in rank to Appellant.
As the trial began seven volunteers remained on the panel.
D. Trial developments related to
challenging the
members selection process
At
trial the defense moved to strike the panel currently detailed and to
stay the
proceedings on the basis that the members detailed were improperly
selected. The focus of Appellant’s
argument was that the systematic exclusion of non-volunteers was
impermissible
court “packing.” Appellant asserted that
the CA failed to perform his statutory duty under Article 25, UCMJ, of
personally selecting the members because the ASJA limited the CA’s pool
of
members to volunteers and did not inform the CA of his developing the
panel
pool on this basis. Appellant asserted
that the ASJA’s limiting the panel pool to
volunteers
impermissibly allowed the members to “choose themselves,” allowed
volunteers to
possibly bring an agenda to the court-martial, and excluded otherwise
qualified
non-volunteer members.
In
support of his position, Appellant filed with the Court a 14 page
Motion For Appropriate Relief with detailed
factual statements and
19 Exhibits that included all the documents that were submitted to the
CA. In Appellate Exhibit XXXIII, the
defense presented
factual information that the defense had obtained through interviews of
three
witnesses including the CA, SJA, and ASJA.
In the motion, the defense requested the Court to consider both
the
“statement of facts presented herein which will be supported by the
testimony
of [the SJA, ASJA, and CA]” and the 19 exhibits. Responding
to this request at the outset of
litigating this motion, the judge ruled, without objection from the
parties,
that he would consider Appellate Exhibit XXXIII and the attachments in
ruling
on the motion. The judge then afforded
the defense the opportunity to present “other evidence.”
While
the defense did call witnesses including the SJA and ASJA, neither the
defense
nor the prosecution called the CA to testify.
However, the CA’s information regarding his selection of the
panel was
already before the judge in the detailed defense factual summary that
the judge
had previously ruled he would consider in ruling on the defense motion. In its motion, the defense established that
the
CA had stated “that despite receiving a file [that included the list of
nine
members recommended by the ASJA], he did not review the submitted list
from the
[ASJA], and instead . . . relied solely upon the 15 members (sic)
questionnaires in making his decision.”
The defense also represented that:
[the CA]
explained that one of the two members lists which have been produced in
this
matter was marked by him as to those members which he chose. It bears his signature and is attached hereto
as Exhibit 2. He
received the recommendation list, Exhibit 1, but he did know who had
prepared
it, nor did he review it until after he had made his choices. When he received the package related to this
panel, he reviewed the member questionnaires presented to him
thoroughly. He does not recall speaking to
anyone about
this panel.
In
denying the defense motion, the military judge stated in part,
[I]n
your own evidence you’ve both
raised the issue and defeated it. I
think that the evidence indicates that the convening authority made
personal
selections of the members in this case and that he did so understanding
that he
could choose from the entirety of his command in the process. The technique which was employed in
soliciting volunteers, both novel and
potentially troubling
. . . has been overcome by the evidence that clearly indicates . . .
both
personal selection of the members and consideration of the individuals
who went
beyond this list.
When
the court-martial was assembled, there
were ten members, six of whom were “volunteers.” The
CA had excused one “volunteer” for an
unexplained reason. When the trial
proceeded to voir dire, the military judge
revisited
the issue of members volunteering by asking the entire panel,
“Did any of you volunteer to serve as a member at a court-martial?” Three of the six original volunteers gave an
affirmative response. They all stated
that they did not know this would be the case they would be sitting on
when
they volunteered. Also the judge
inquired of each member his reason for volunteering.
One member stated simply, “Sir, it was an
opportunity to take part in a unique aspect of the justice system in
the
military. I’ve always wanted to do
that.” The other members stated they
just wanted to provide help where it was needed or “just offered.” We also note that in voir
dire one member, who was not among the original 15 nominated volunteers
and was
later added to the panel in an amendment to the convening order,
disclosed that
she volunteered for reasons unrelated to the solicitation for court
members in
the Plan of the Week. She explained that
she had volunteered “for the experience” of court-martial participation.
During
individual voir
dire, civilian defense counsel questioned the other three members who
did not
indicate that they volunteered. One
member did not recall volunteering, another
did not
remember the request for members in the Plan of the Week, and the final
member
stated that he did not understand the earlier question and admitted
that he was
also a volunteer. Group or individual voir dire also established that the four new
panel members
were not volunteers.
With
this information, the defense counsel
did not challenge any member because the member volunteered for service
on the
panel. The judge granted one defense
causal challenge to a volunteer member on grounds that had nothing to
do with
the member’s status as a volunteer. The
judge also granted one peremptory challenge made by the prosecution and
one
made by the defense, thereby removing two more “volunteers” from the
panel. As the case began on the merits,
only three volunteer members who responded to the Plan of the Week
solicitation
were on the seven member panel.
E. Appellate challenge related to
the
members
selection process
At
the lower court, Appellant repeated the challenge to the panel
selection that
he originally presented to the military judge, but the lower court
rejected his
arguments. We note that the lower court
opinion incorrectly states only two volunteers actually served on the
panel
when, in fact, there were three. 57 M.J. at 715. But
this factual error does not otherwise affect the lower court’s analysis
or
conclusions. Although the lower court
agreed with the military judge that the panel selection process was
“potentially troubling,” it found that “[t]here was no effort to
exclude any
particular group of potential members.”
Before
this Court, Appellant again asserts a violation of Article 25, UCMJ in
the ASJA’s method of soliciting volunteers
to select a members pool and repeats his
trial and prior appellate
arguments. However, for the first time,
Appellant expands his attack on the members selection process by
arguing that
the CA did not select members for Appellant’s court-martial based on
the
explicit statutory requirements of Article 25(d)(2), UCMJ.
Appellant asserts that the ASJA advised the
CA of only four of the Article 25(d)(2)
requirements
for selecting members: age, training, length of service, and judicial
temperament. Appellant claims the ASJA
did not advise the CA of the statutory requirements of “experience” and
“education,” thereby preventing a properly informed CA from selecting
the
members.
The
Government asserts that the CA complied with Article 25(d)(2),
UCMJ, and properly detailed members to Appellant’s court-martial. The Government asserts that the nomination
procedure here was a permissible preliminary screening of available
members. The Government also asserts
that there was no evidence that the CA did not personally select the
members.
II.
DISCUSSION
A.
Evaluation of the novel panel selection process
Article I, Section 8, Clause 14, of the
United States Constitution empowers the Congress “To make Rules for the
Government and Regulation of the land and naval Forces[.]” Legislating under the authority of this
provision, Congress has established the court-martial as the
institution to
provide military justice to servicemembers. This Court has stated that “the Sixth
Amendment right to trial by jury with accompanying considerations of
constitutional
means by which juries may be selected has no application to the
appointment of
members of courts-martial.”
Actual
appointment of fair and impartial members is the duty and
responsibility of the
CA. A “convening authority’s power to
appoint a court-martial is one accompanying the position of command and
may not
be delegated.”
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.”
See
[W]e have
recognized that the convening authority, while charged
with the personal responsibility for the selection of court members,
must have
assistance in the preparation of a panel from which to choose those
members. In order to carry out his
function under Article 25, he must necessarily rely on his staff or
subordinate
commanders for the compilation of some eligible names.
Kemp, 22 C.M.A. at 155, 46 C.M.R. at
155; see
also
Those
responsible for nominating court members should reflect upon the
importance of
this task. It is a solemn and awesome
responsibility and not one to be taken lightly or frivolously. . . . A fair and impartial court-martial is the
most fundamental protection that an accused servicemember
has from unfounded or unprovable charges. There is a duty to nominate only fair and
impartial
members.
Smith, 27 M.J. at 252 (Cox, J.,
concurring).
In a long line of cases, we have
addressed
the role of subordinates, often the staff judge advocate, in performing
a
preliminarily screening of members. In
so doing, this Court has repeatedly declared its vigilance in
guaranteeing the
judicial integrity of a court-martial and in preventing improper
selection of
court members. See Roland,
50 M.J. at 68; Hilow,
32 M.J. at 442.
Several cases provide guidance as
to what
cannot be done in screening members for the CA’s consideration of
appointment
to a court-martial. In United State
v. Daigle, 1 M.J. 139 (C.M.A. 1975) we rejected a staff judge
advocate’s
process to obtain nominees from subordinate commanders solely on the
basis of
their rank and without consideration of the Article 25(b)(2), UCMJ
criteria. See also United
States v. Kirkland, 53 M.J. 22 (C.A.A.F. 2000)(holding
that exclusion of potentially qualified members below the grade of E-7
was
improper); cf. United States
v. Yager, 7 M.J. 171, 173 (C.M.A.
1979)(permitting exclusion of soldiers in pay grades E-1 and E-2 as
presumptively unqualified under Article 25(d)).
In Hilow, we held that the
deliberate
stacking of the pool of potential members was improper.
32 M.J. at 442. We
found it impermissible for the division
deputy adjutant general to submit nominees to the staff judge advocate
who were
supporters of a command policy of hard discipline.
Other
cases are illustrative as to what subordinates can do in generating a
pool of
potential court-marital members to be submitted to the CA.
In Kemp, 22 C.M.A. 152, 46 C.M.R. 152,
we approved the initial compiling of the pool of potential nominees by
random
selection from the master personnel file.
See also United States v. Crawford, 15 C.M.A. 31,
35
C.M.R. 3, 7 (1964)(approving selection of
members
following a random selection of a prospective member list). In United States v. Pearson, 15 C.M.A.
63, 35 C.M.R. 35 (1964), this Court found nothing to cast doubt on the
propriety of a selection process that preliminarily screened enlisted
court
members senior in grade to the accused as this limitation is required
by
Article 25, UCMJ. In White, this
Court permitted group commanders to submit nominees who were the “best
and the
brightest” officers, thereby ultimately satisfying the CA’s personal
desire for
more commanders and their deputies rather than non-commanders on the
court-martial panel. 48
M.J. at 253.
Importantly in White, this
Court
reaffirmed the importance of inclusion in identifying panel members.
Thus, a convening authority ‘is
free to require representativeness in his
court-martial panels and to insist that no important segment of the
military
community - such as blacks, Hispanics, or women - be excluded from
service on
court-martial panels,’ so long as he or she does not systemically
exclude a
class or group of qualified candidates from court-martial membership.
From
these cases, we identify three factors that are most helpful in
evaluating the
propriety of any screening of servicemembers
for
eventual consideration by the CA for court-martial service. But at the outset, we observe that these
factors are not exhaustive, nor a checklist, but merely a starting
point for
evaluating a challenge alleging an impermissible members
selection process. Indeed, we may
conclude, as we do in this case, that a method of members
selection that does not implicate any of these three factors may still
be
impermissible and erroneous.
First, we will not tolerate an
improper
motive to pack the member pool. See
Hilow, 32 M.J.
at 440;
Smith, 27 M.J. at 249-50. Second,
systemic exclusion of otherwise qualified potential members based on an
impermissible variable such as rank is improper. See
In
applying these factors to the present case, we view the issue of
impermissible
screening of the panel pool as one that invites de novo review. See Kirkland, 53 M.J. at 24
(“Whether a court-martial panel was selected free from systematic
exclusion is
a question of law which we review de novo.”).
However, we are bound by the military judge’s findings of fact
unless
they are “clearly erroneous.” Benedict,
55 M.J. at 454.
Finally, “The defense shoulders the burden of establishing the
improper
exclusion of qualified personnel from the selection process.”
Applying
that framework here, we conclude that Appellant has not met his burden
of
establishing the improper exclusion, with an improper motive, of
qualified
personnel from the selection process.
Although Appellant attempted to establish that the pool was
selected for
his court-martial with an improper purpose or intention to “stack” the
panel,
the record belies this assertion. The
ASJA explained in detail that his reason for soliciting volunteers was
to
generate a pool of members that would be available to serve in four
courts-martial. The ASJA’s
action of identifying potential enlisted members who were ineligible to
serve
on Appellant’s court-martial corroborates the ASJA’s
statement that he was concerned with obtaining a pool that could serve
in other
cases. Moreover the ASJA testified that
he made every effort to ensure that the panel members in the pool were
impartial and fair. Importantly, he
discussed his method of obtaining the pool of volunteers with the SJA
and
military seniors and explained it to an SJA at a different command. The transparency of the ASJA seeking
volunteer members suggests that he had no improper motive in his
attempt to
develop a pool of potential members.
Finally, the ASJA advised the CA that he had the option to
select other
officers from throughout the command, and other members would be
solicited if
he requested them. On these facts, the
issue of unlawful court stacking was not raised. See
The
military judge and the lower court both correctly concluded that there
was not an exclusion with an improper
motive of a class of qualified
servicemembers from possible consideration
by the
CA. There was no exclusion based on
rank, race, or gender. None of the
exclusions of servicemembers in other
cases that
caused this Court to reject preliminary screening of members is present
in this
case.
We
acknowledge that non-volunteers were excluded from the initial members pool. But we
agree with the military judge and the lower court who
rejected “Appellant’s argument that non-volunteers are a discrete group
that
cannot be excluded without violating his substantial rights.” Dowty, 57 M.J. at 714.
Moreover, Appellant has made no showing that this result
directly
impacted the fabric of the panel pool.
Although Appellant asserts generally that volunteers may have
brought
their own agenda to the court-martial, the military judge conducted voir dire of each member to establish the
circumstances of
the member volunteering. The reasons for
volunteering given by every panel member establish only good intentions
of each
member and no basis to question their motive.
This
conclusion is supported by defense counsel not challenging any
individual
volunteer for reasons related to volunteering for the panel service. In fact, four of the seven members who
actually served in this case were not volunteers.
Finally,
we need not speculate as to whether the solicitation of volunteers was
an
attempt to improve the representativeness
of the
court-martial service. The ASJA never
offered this justification for his action.
So this factor is not relevant to our inquiry.
Notwithstanding
our finding none of the impermissible screening of potential members
that we
have found in past cases, we conclude that it was error to inject into
the
panel selection process the irrelevant variable of a servicemember
volunteering to be a member, and we reject the “novel and potentially
troubling” method used here to identify volunteer members for the panel
pool. This conclusion is consistent with
the current federal practice.
Article
36, UCMJ, 10 U.S.C § 836 (2000), delegates to the President the
authority to
prescribe “[p]retrial, trial, and post-trial procedures, including
modes of
proof,” in courts-martial, applying insofar as practicable “the
principles of
law and the rules of evidence generally recognized in the trial of
criminal
cases in the United States district courts,” so long as not
inconsistent with
the UCMJ. “The implication is that
Congress intended that, to the extent ‘practicable,’ trial by
court-martial
should resemble a criminal trial in a federal district court.”
That “federal
rule” is simply that the use of
volunteers “violate[s] 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
statute required the clerk to “draw at random from the qualified jury
wheel
[also based on a random drawing from voter registration list] . . .
names of
persons . . . required for . . . jury panels.”
28 U.S.C. § 1866(a).
In Kennedy, the jury clerk, pursuant
to standing authorization of the chief judge of the district, obtained
volunteers from the list of persons who had completed jury service in
the prior
term. Weighing this violation against
the goal of the statute to achieve random selection from a fair cross
section
of the community, the court found that this was a “substantial failure
to
comply” with the statute.
The
linchpin of the Kennedy decision is that Congress designated a
procedure
to develop a jury panel and the use of volunteers was “a substantial
variable,
not contemplated by the Act’s few, narrow categories of qualifications,
exemptions, and excuses, [that] has confounded the selection process.”
Congress
in Article 25(b)(2) also established a
procedure to
obtain members for a court-martial. In
the present case, the use of volunteers was also an irrelevant variable
injected into the selection of the panel pool.
We embrace the approach of the Court of Appeals in Kennedy
and
will “not speculate as to what sort of biases will be reflected in a
jury
chosen on the basis of its members’ willingness to depart from their
daily
business and serve as jurors.”
B. Evaluation of prejudice
from the improper
preliminary screening
of panel members
Our
rejection of this practice requires this Court to evaluate the impact
of this
error in the context of the military justice system.
See Daigle, 1 M.J. at 139. However,
this Court has not clearly stated
the allocation of the burden regarding the demonstration of prejudice
in
circumstances like the present case that involved the improper use of
command
authority preliminarily to screen members but did not implicate the
issue of
command influence. Compare id.
(testing for prejudice from improper selection of court members but not
clearly
allocating the prejudice burden) and Roland, 50 M.J. at
69 (“Once
the defense comes forward and shows an improper selection, the burden
is on the
Government to demonstrate that no impropriety occurred.”) with Upshaw,
49 M.J. at 113 (allocating to the Appellant the burden “[w]here
administrative
mistakes occur in detailing court members”).
In the present case, error in preliminarily screening the
members was
not merely an “administrative mistake.” As
the error was more egregious, we conclude that the Government has the
burden to
demonstrate that the error did not “materially prejudice the
substantial rights
of the accused.” See
Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2000).
In so doing and evaluating the prejudice in
this case, we focus on the motive of those involved in the preliminary
screening of panel members, the nature of the preliminary screening
variable of
volunteerism, and its impact on the selection of the members.
Importantly,
as we have previously stated, there is no showing of an improper motive
by
anyone involved in the nomination or selection of the members. See Upshaw,
49 M.J. at 113 (stating that “where the convening authority’s motive is
benign,
systematic inclusion or exclusion may not be improper”). Next, we observe that the preliminary
screening variable of volunteerism is irrelevant. There
is no showing that this variable
operated to exclude a discernable group or to diminish the
representative
nature of the pool. See Kennedy,
548 F.2d at 614.
Appellant has failed to show how non-volunteers were different
as a
group than volunteers or how any of the three individual volunteers in
this
case was different from the four non-volunteers. Also
it is clear that the use of volunteers
in the military justice case was not as offensive as their use to
select a
civilian jury. The policy concern for a
random selection and a fair cross section essential in selecting a
civilian jury, is not applicable in the
military justice system. See Tulloch,
47
M.J. at 285.
The
focus of our concern is therefore on whether the use of volunteers
thwarted the
congressional procedure in Article 25(b)(2)
for
selection of “best qualified” members.
To evaluate this impact, we must now examine two dimensions of
the panel
selection in this case - the advice to the CA regarding his selection
of the
members and the actual process of the CA personally selecting the
members on
this panel.
1. The
advice to the CA as
he
selected
the members of the panel
In
Article 25, Congress has provided members of the armed forces with a
valuable
protection by requiring that the CA personally select those members of
the
armed forces "best qualified" to serve as court members by reason of
judicial temperament and related statutory criteria.
We now address whether this protection was
honored in this case.
In
Hilow, we emphasized that in
discharging his
Article 25 powers, the CA must be “fully
informed of
any attempts to ‘stack’ the court-martial panel or any other matters
which may
cast doubt on the fairness of the proceedings.”
32 M.J. at 442.
While we do not find any attempt to stack the court-martial in
this
case, we do perceive the unorthodox method to obtain the panel pool as
a matter
which was so unusual that it was problematic and arguably raised
questions
regarding the appearance of fairness of the panel.
Therefore, it was a matter about which the
ASJA should have advised the CA before he selected the members.
In
light of this failure to advise the CA, we have elected to address the
issue
Appellant asserts for the first time at this Court, that the ASJA’s advice regarding the Article 25(b)(2)
statutory criteria for the CA to select members was also deficient.
It
is well settled that “[o]rdinarily, an
objection to
the method of selection of the triers of
the facts
must be made before trial.” Crawford,
15 C.M.A. at 33, 35 C.M.R. at 5. Appellant’s failure to make this precise
objection either at trial or before the lower court gives us pause, but
in the
past we have “pass[ed] over the procedural deficiency to reach the
substance of
the issue.”
It
is not disputed that the ASJA’s advice to
the CA was
deficient. See Article 25(d)(2), UCMJ. The AJSA’s written advice identified these four
factors for the
CA to consider in selecting court members:
age, training, length of service, and judicial temperament. This advice omitted the statutory factors of
experience and education.
However,
this error did not taint the CA’s personal selection of the members. The facts as found by the military judge
demonstrate the CA’s use of the member questionnaires, which included
extensive
information regarding education and experience of the potential members
when he
selected the members. The record
supports these facts. The CA stated that
he reviewed the member questionnaires in making his selection. This detailed information on each member
addressed both the factors of experience and education.
Each
questionnaire presented the military experience of the member for the
“last 10
years plus any significant or unusual billets” and experience in the
military
justice system. Appellate
Exhibit XXXIII at Court Member Questionnaire.
Also, each member questionnaire presented a
detailed summary of the educational background of each member including
from
high school through graduate education, degrees, fields of study, and
legal education
and courses. Appellate
Exhibit XXXIII at Court Member Questionnaire.
In this case, the CA expressly stated that he
considered the questionnaires, and the questionnaires presented this
detailed
information of each member’s experience and education.
In our view, the combination of these
circumstances sufficiently established that the CA applied the criteria
of
Article 25, UCMJ, when he selected these members and removed any claim
of
prejudice attendant to the omission of the experience and education
criteria
from the SJA advice.
2. The
CA’s
personal selection
of the members
Notwithstanding
the previously discussed issues relating to the identification of the
members
pool and the deficient advice to the CA, we are satisfied that the CA
personally
selected the members of Appellant’s court-martial.
Appellant does not challenge that the CA
personally selected a majority of the members (four of the seven) who
were not
in the volunteer pool and that he added by the final modification of
the
convening order. The sole issue is
whether the CA personally selected the three volunteers who eventually
served
as members.
The
judge in ruling on this issue was right on the mark when he stated that
the
defense’s proof in support of the motion challenging the selection
process
“both raised the issue and defeated it.”
The judge was correct that it was the defense evidence that
unequivocally established the CA personally selected the members.
In
Appellate Exhibit XXXIII, which the military judge admitted as evidence
on the
motion, the defense presented an unrebutted
explanation of the CA as to how he personally selected the panel
members. In this exhibit, the CA explained
that he
relied “solely upon the 15 member questionnaires in making his
decision.” Other statements of the CA in
this defense
exhibit provide further reassurances that the CA’s selection of the
members was
free of any improper influence by the ASJA.
The CA stated that he selected the panel members and did not
review the
list of nominations submitted by the ASJA until after he had selected
the
panel. He also stated that he did not
even know who had prepared the list of nominees. The
CA did not select one of the ASJA’s
nominees and in fact selected a member from the
panel pool that the ASJA had not selected.
This further corroborates the CA’s assertion of his independent
selection of the members. Finally, and
most importantly, the CA stated that he marked Exhibit 2 to indicate
his
selection of members and personally signed it.
This document bears his signature.
The CA later also personally signed the convening order
modification
reflecting his selection of these members.
In
light of these statements of the CA, placed in the record by the
defense,
establishing that the CA personally selected the members, it was not
necessary
that he personally appear as a witness at the court-martial to explain
his
actions. We conclude that the military
judge’s finding of fact that the CA personally selected the panel is
not
clearly erroneous. See Benedict,
55 M.J. at 455 (concluding that testimony of convening authority and
personal
signature on convening order support finding of the military judge that
convening authority personally selected members).
C.
Summary
We
hold that under the unique facts of this case, the CA personally
selected the
panel and applied the criteria of Article 25(d), thereby curing any
error
arising from screening of the panel pool using the impermissible
variable of
volunteer. The Government has carried
its burden to demonstrate no prejudice from this error.
This is not to say that the convening
authority’s proper and personal selection of the members can cure all
impermissible screening. See Hilow, 32 M.J. at 442 (“[W]e have never
held that
the impact of [command subordinates’] improper assistance can be
ignored solely
on the basis of the CA’s official duty to personally select the members
in
accordance with the criteria of Article 25(d)(2).”).
Previously
we have addressed separately each of the Appellant’s objections to the
selection
and service of volunteer members on the panel and to the erroneous ASJA
advice
to the CA. However, we have also
considered their collective effect and find that there is no appearance
of
unfairness arising from the service of any of the volunteer members in
this
case. See
The
amicus in this case identifies several issues relating to the process
of
members selection and the involvement of the CA and the SJA in
selecting
members. The amicus also invites this
Court’s consideration of these issues in light of this Court’s
supervisory role
as the highest court in the military justice system.
See Eugene R. Fidell,
Guide to the Rules of Practice and Procedure for the United States
Court of
Appeals for the Armed Forces 32-34 (11th ed. 2003)(collected cases
where
this Court invited rulemaking action or consideration by Congress when
it has
identified needed improvements to the military justice system).
The
amicus position reflects longstanding expressions of concern regarding
the
present process for selecting members. See,
e.g., Smith, 27 M.J. at 252 (Cox, J., concurring)(calling
the method of the CA selecting members “the most vulnerable aspect of
the
court-martial system; the easiest for critics to attack”).
See also Honorable Walter T. Cox, III
et al., Report of the Commission on the 50th Anniversary
of the
Uniform Code of Military Justice (May 2001)(recommending modifying
the role
of the convening authority in selecting court-martial members); 2
Francis A.
Gilligan & Fredric I. Lederer, Court-Martial
Procedure 14, ¶ 15-3100 (2d ed. 1991)(“Arguably, the most critical
and
least necessary vestige of the historical origins of the military
criminal
legal system is the personal appointment of the members by the
convening
authority.”); Kenneth J. Hodson, Military
Justice:
Abolish or Change?, 22 Kan. L. Rev. 31 (1973), reprinted in
Mil. L.
Rev. Bicent. Issue 577, 605
(1975)(proposing that
“commanders, at all levels, be completely relieved of the
responsibility of
exercising any function related to courts-martial except, acting
through their
legal advisors, to file charge with a court for trial, to prosecute,
and, in
the event of conviction, to exercise executive clemency by restoring
the
accused to duty.”).
But
long ago regarding this matter of members
selection we
stated, “[t]his Court sits as a judicial body which must take the law
as it
finds it, and that any substitution of a new system of court selection
must
come from the Congress . . . .” Kemp,
22 C.M.A. at 154, 46 C.M.R. at 154. Today, we heed that wise admonition and,
after applying the law to the facts, conclude simply there was error in
this
“novel” attempt to solicit volunteers to serve as court members. We, however, also find no material prejudice
to Appellant’s substantial rights.
DECISION
The
decision of the United States Navy-Marine Corps Court of Criminal
Appeals is
affirmed.
As
the Supreme Court has noted, “trial by jury in criminal cases is
fundamental to
the American scheme of justice.” Duncan v.
Congress
has determined that the disciplinary needs of the armed forces require
use of a
different procedure in courts-martial.
Under the Uniform Code of Military Justice [hereinafter UCMJ],
there is
no right to trial by jury. The convening
authority - the commander who exercises prosecutorial discretion -
selects the
court-martial panel. See
Article 25, UCMJ, 10 U.S.C. § 825 (2000); Rules for Court-Martial 407,
503; United
States v. Smith, 27 M.J. 242 (C.M.A. 1988).
Congress,
however, did not provide the
convening authority with unfettered discretion in selecting the panel
that
would decide the fate of an accused service member.
As the majority opinion notes, a service
member has the right to a panel that is fair and impartial. ___ M.J. (15) (citing United States v. Roland,
50 M.J. 66 (C.A.A.F. 1999)). The
convening authority must personally select the members of the panel
according
to specific statutory criteria, a function that may not be delegated. ___ M.J. (16-17)(citing
United States v. Ryan, 5 M.J. 97 (C.M.A. 1978); Article
25(d)(2),
UCMJ). To the extent that a convening
authority relies on staff assistance in selecting a court-martial
panel, the
staff cannot narrow the pool through criteria that are not within the
qualifications established by Article 25.
See ___ M.J. (27-28).
In
the present case, the assistant staff
judge advocate narrowed the pool to 22 potential officer members
without applying
the qualifications of Article 25. The
sole criterion was self-qualification by volunteers.
The lead opinion agrees that this process was
impermissible, but concludes that the error was not prejudicial.
In
testing for prejudice, the lead opinion appropriately
focuses on whether the use of volunteers thwarted the congressional
requirement
for selection of the “best qualified” members under Article 25(d)(2). There were
three critical errors in this case.
First, the staff did not apply the criteria in Article 25 in
establishing a potential pool of members.
Second, the assistant staff judge advocate did not advise the
convening
authority that the staff had deviated from the standard use of Article
25
criteria, but instead had relied on volunteers.
Third, the assistant staff judge advocate advised the convening
authority to use four criteria when selecting the panel, advice that
omitted
two of the statutory criteria in Article 25 - experience and education.
The
lead opinion concludes that these errors
were not prejudicial because the panel was selected by an experienced
convening
authority who personally reviewed the questionnaires of the potential
members
that had been selected by his staff, which included information
pertinent to
the experience and education of the potential panel members. I respectfully disagree.
To
the extent that this convening authority
had experience in the selection of panel members, it would have been
reasonable
for him to rely on his staff to apply the criteria set forth in Article
25 in
narrowing the pool. They did not. Moreover, it would have been reasonable for
him to rely on the assistant staff judge advocate to advise him
correctly on
the criteria he was required to apply in selecting the panel. That advice, however, was defective because
it omitted one-third of the statutory criteria.
Although the convening authority may have used benign criteria
in
shaping the panel, he did so applying defective standards to a pool
that had
been impermissibly narrowed by his staff.
In
short, we have a flawed process that
produced multiple felony convictions. We
have a criminal record that not only was imposed without a trial by
jury, but
through a process that failed to apply the procedures established by
Congress
in lieu of trial by jury. These errors
were compounded by the fact that the staff failed to inform the
convening
authority that they had used a deviant procedure to narrow the pool,
and by the
staff’s erroneous advice regarding the criteria that the convening
authority
was required to apply under Article 25.
Under these circumstances, I respectfully dissent.