Сhallenges to panel selection process – criteria used by convening authority

In general. While the CA must use the Article 25 criteria, much litigation has revolved around the CA’s supplementing the Article 25 criteria with other criteria. Some of these criteria are discussed below. See United States v. Dowty, 60 M.J. 163 (C.A.A.F. 2004). Accused contended that, by soliciting volunteers to serve as court members and then drafting a list of nominees for the CA’s approval, the ASJA violated the letter and spirit of Article 25, UCMJ. Court upheld conviction in face of potentially troubling” panel selection where CA personally selected members despite  northodox nomination process. While it was error to nominate members based on an irrelevant variable, such as volunteering, the error did not prejudice the accused. Note: accused and counsel were “given full opportunity to question potential members in open court to develop any possible biases or preconceptions, and, through appropriate causal and peremptory challenges, removed any potential member who they had reason to believe would not be capable, fair, and impartial.” Also, by time of accused’s trial, only three “volunteers” remained on seven-member panel.

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2. Cross-Sectional Representation. The commander may seek to have the panel’s
membership reflect the military community. See, e.g., United States v. Smith, 27 M.J.
242, 249 (C.A.A.F. 1988). “[A] commander 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.” CMA tacitly accepted as valid the CA’s effort “to have a mix of court members
with command or staff experience” to have “some female representation on the panel.”

a. Inclusion by Race. Convening authority may include members based upon
their race so long as the motivation is compatible with Article 25, UCMJ. United
States v. Crawford
, 35 C.M.R. 3 (C.M.A. 1964) (as to black NCO, it is exclusion
that is prohibited, not inclusion). See also United States v Smithinfra.

b. Inclusion by Gender. Permissible if for proper reason.

(1) United States v. Smith, 27 M.J. 242 (C.M.A. 1988). CA may take
gender (or race) into account in selecting court members if seeking in
good faith to select that a court-martial panel that is representative of the
military population. But, evidence indicated a hidden policy of ensuring
two “hardcore” females were on all sexual assault cases based on their
“unique experience.”

(2) United States v. Lewis, 46 M.J. 338 (C.A.A.F. 1997). In a case
involving attempted voluntary manslaughter and assault on the accused’s
wife, the convening authority did not “stack” the panel with female
members when, in response to a defense request for enlisted members,
two of original five female officers were relieved and one female enlisted
member was added, resulting in a panel of five male and four female
members. Original panel had ten members, five of whom were females.

c. Duty Position. Convening authority may select based upon duty position
(e.g., commanders) in a good faith effort to comply with Article 25 criteria.

(1) United States v. White, 48 M.J. 251 (C.A.A.F. 1998). CA issued a
memorandum directing subordinate commands to include commanders,
deputies and first sergeants in the court member applicant pool. Eight of
ten panel members for the accused’s trial were in command positions.


Court held CA did not engage in court packing absent evidence of
improper motive or systematic exclusion of a class or group of
candidates. Court noted “best qualified” selection for command is close
to “best qualified” under Article 25. See Effron, J., and Sullivan, J.,
concurring in the result, but criticizing the majority’s willingness to
equate selection for command with selection for panel duty.

(2) United States v. Cunningham, 21 M.J. 585 (A.C.M.R. 1985) (holding
preference for those in leadership positions is permissible where CA
articulates Article 25 criteria; 6 commanders and 3 XOs who were 1
COL, 3 LTCs, 2 MAJs, 2 CPTs, 1 LT); see also United States v. Lynch,
35 M.J. 579 (C.G.C.M.R. 1993), rev’d on other grounds, 39 M.J. 223
(C.M.A. 1994) (holding selection process that limited members to those
“with significant seagoing experience” met the requirements of Article
25, specifically the “experience” criterion given the charged offenses).

d. Rank is not a criterion listed under Article 25, UCMJ. The CA may not
select members junior to an accused, but, aside from that one qualification, the
convening authority may not use rank as a device for deliberate and
systematic exclusion 
of otherwise qualified court members. United States v.
, 1 M.J. 139 (C.M.A. 1975) (policy of excluding all lieutenants and WOs);
but see United States v. Yager, 7 M.J. 171 (C.M.A. 1979) (exclusion of persons
in grades E-2 and E-1 permissible).

(1) Despite the cases holding that the composition of the panel can
create an “appearance of evil,” more recent cases have disallowed
challenges to the panel based solely on its composition at trial. United
States v. Bertie
, 50 M.J. 489 (C.A.A.F. 1999) (disproportionate number
of high-ranking panel members did not create presumption of
impropriety in selection).

(2) United States v. Upshaw, 49 M.J. 111 (C.A.A.F. 1998) (good faith
administrative error resulting in exclusion of otherwise eligible members
(E6s) was not error). But see Kirkland, below

(3) United States v. Roland, 50 M.J. 66 (C.A.A.F. 1999) (SJA’s memo
soliciting nominees E-5 to O-6 was not error). But see Kirkland, below.

(4) United States v. Kirkland, 53 M.J. 22 (C.A.A.F. 2000), pet. for
clarification denied,
 54 M.J. 211 (C.A.A.F. 2000). Despite evidence that
CA understood and applied Article 25, sentence set aside where panel
selection documents appeared to exclude NCOs below E-7. Panel
selection documents may give rise to an appearance of impropriety
where documents make it seem that rank was a criterion in panel

(5) United States v. Fenwrick, 59 M.J. 737 (A.F. Ct. Crim. App. 2003).
Defense raised motion to dismiss for systematic and improper exclusion
of lieutenants from panel membership. The GCMCA testified on the
motion regarding his selection of members IAW Article 25 criteria. The
military judge, however, determined the GCMCA had systematically and
improperly excluded lieutenants because in the thirteen courts-martial of
the fiscal year only two lieutenants were selected and none served. The
military judge granted defense’s motion and ordered the GCMCA to select new panel members free from systematic exclusion of lieutenants.

The GCMCA selected a new panel, without lieutenants, causing the
military judge to dismiss the case with prejudice and the Government
appealed. On appeal, AFCCA held “the military judge may rely upon
statistical evidence to discern a ‘subconscious’ desire by the convening
authority to improperly exclude certain grades, [but] such statistical
evidence must clearly indicate such an exclusion.” Such clear evidence
was lacking in this case where lieutenants were not excluded from the
nomination process, the GCMCA testified he applied the Article 25
criteria, and the GCMCA had previously selected six lieutenants in
fifteen courts-martial in the prior fiscal year. The court recognized “it is
not improper, during the selection process, for a convening authority to
look first to officers and enlisted members senior in rank because they
are more likely to be the best qualified under Article 25.”

(6) United States v. Smith, 37 M.J. 773 (A.C.M.R. 1993). In
handwritten note, convening authority directed major subordinate
commanders to provide “E7” and “E8” members for membership on
court-martial panel. ACMR found that selection was based solely on
rank in violation of Article 25, UCMJ, and that the improper selection
deprived the court of jurisdiction. Findings and sentence set aside.

(7) United States v. Nixon, 33 M.J. 433 (C.M.A. 1991). A panel
consisting of only E-8s and E-9s creates an appearance of evil and is
probably contrary to Congressional intent. The CG’s testimony,
however, established that he had complied with Article 25 and did not
use rank as a selection criterion. Court noted close correlation between
the selection criteria for court-martial members in Article 25(d)(2),
UCMJ and the grade of a commissioned or non-commissioned officer.
“Indeed, because of that correlation, there is a danger that, in selecting
court members, a convening authority may adopt the shortcut of simply
choosing by grade.” Resulting blanket exclusion of qualified officers or
enlisted members in lower grades violates Congressional intent.

(8) United States v. Ruiz, 46 M.J. 503 (A.F. Ct. Crim. App. 1997), aff’d,
49 M.J. 340 (C.A.A.F. 1998). Convening authority did not improperly
select members based on rank when, after rejecting certain senior
nominees from consideration for valid reasons, he requested replacement
nominees of similar ranks to keep the overall balance of nominee ranks
relatively the same.

(9) United States v. Benson, 48 M.J. 734 (A.F. Ct. Crim. App. 1998).
An Air Force convening authority violated Article 25 when, after
sending a memorandum to subordinate commands directing them to
nominate “officers in all grades and NCOs in the grade of master
sergeant or above for service as court-members,” he failed to select
members below the rank of master sergeant (E-7). The convening
authority, while testifying that he had no intent to violate Article 25, also
testified that he had never selected a member below the rank of E-7. The
court held the CA violated Article 25 by systematically excluding ranks
E-4 to E-6. The findings and sentence were set aside. This case provides
an excellent review of the case law interpreting Article 25, UCMJ, and
court member selection.

3. Systematic exclusion of otherwise qualified personnelGenerally, where the

accused challenges the panel because the CA has allegedly excluded otherwise qualified
people (e.g., she prefers to select only those who have command experience), we look to
the motivation of the convening authority. If the motivation is compatible with Article
25, UCMJ, the selection may not be disturbed. Rank, however, is the one area where the
convening authority’s motive is largely irrelevant (thus, the CA may have the intention of
fully complying with Article 25, but Article 25 is violated where the CA uses rank as a
“shortcut” in the selection process). Moreover, where the convening authority appoints
members to achieve a particular result (e.g., to guarantee a conviction, or a harsh
sentence), the CA has engaged in “court stacking” or “court packing.” This is not a
jurisdictional challenge per se but rather a species of command influence, in violation of
Article 37. If the accused alleges the CA has engaged in court stacking, the court will
look to the motivation and intent of the CA.

a. United States v. Melson, No. 36523, 2007 CCA LEXIS 372 (A.F. Ct. Crim.
App. Sep. 14, 2007) (unpublished). At his trial, the accused moved to dismiss
the charges and specifications, alleging that the GCMCA improperly selected the
panel by intentionally selecting senior members to serve. Five of the ten
members were colonels (O-6s) and, although the case was tried at a different
base, some of his staff were chosen as members. The GCMCA testified that he
“wanted to pick members whom he knew had the best judgment and experience.”
He also said it “was the most serious case he had ever handled.” Furthermore, he
wanted to ensure that he had officers with the “requisite maturity and
experience.” The issue was addressed at length at trial and the military judge
denied the motion, finding that the CA had properly applied Article 25. The
AFCCA affirmed, stating that every panel is essentially “hand-picked.”
However, “[w]hat is impermissible is for the convening authority to select
members with a view toward influencing the outcome of the case.” The court
found that the CA gave the panel selection in the case “a great deal of time and
consideration . . . [and] did so in an attempt to ensure justice, not subvert it.”
Therefore, the accused did not satisfy his burden to show that the members were
improperly selected.

b. United States v. Simpson, 55 M.J. 674 (A. Ct. Crim. App. 2001). aff’d, 58
M.J. 368 (C.A.A.F. 2003). CA’s deliberate exclusion of personnel assigned to
the Army’s Ordinance Center and School did not constitute unlawful “court
packing” where the CA’s motive was to find an unbiased and objective panel.

c. United States v. Brocks, 55 M.J. 614 (A.F. Ct. Crim. App. 2001). Base legal
office intentionally excluded all officers from the Medical Group from the
nominee list, because all four alleged conspirators and many of the witnesses
were assigned to that unit. Citing United States v. Upshaw, 49 M.J. 111, 113
(C.A.A.F. 1998), “[a]n element of unlawful court stacking is improper motive.
Thus, where the convening authority’s motive is benign, systematic inclusion or
exclusion may not be improper.” Held: Exclusion of Medical Group officers did
not constitute unlawful command influence. But see United States v. Bartlett, 66
M.J. 426 (C.A.A.F. 2008) (invalidating Army regulation that exempted certain
special branches from court-martial duty, including medical personnel).

d. In United States v. Redman, 33 M.J. 679 (A.C.M.R. 1991), the court found
that the Government’s dissatisfaction with the panel’s unusual sentences actually
meant dissatisfaction with findings of not guilty or lenient sentences. The court held the intentional manipulation of Article 25 criteria to achieve particular result in cases is a clear violation of Articles 25 and 37, UCMJ.

e. United States v. Smith, 27 M.J. 242 (CMA 1988) (legal office policy of
placing “hardcore” female members on panel in sex cases to achieve a particular
outcome was ruled inappropriate); see also United States v. Hilow, 32 M.J. 439
(C.M.A. 1991) (court packing occurred where functionary prepared lists of panel
members based upon notions of hard discipline).

4. Replacing Members.

a. United States v. Mack, 58 M.J. 413 (C.A.A.F. 2003). SJA memorandum to
convening authority concerning operation of convening order approved by the
convening authority provided that, when accused requested panel of at least one-
third enlisted members, alternate enlisted members would be automatically
detailed without further action by the convening authority if, among other
triggering mechanisms, “before trial, the number of enlisted members of the

GCM, BCD SPCM, or SPCM court-martial panel falls below one-third plus
two.” Prior to trial, two officer and one enlisted members were excused, leaving
five officer and five enlisted members (a total of nine members, of which one-
third plus two, or five, were enlisted). At trial, two additional enlisted members
sat, which appeared to be inconsistent with the above triggering mechanism. The
defense did not object. ACCA remanded on its own for a DuBay hearing
concerning the presence of the additional two enlisted members. CAAF held
that, “When a convening authority refers a case for trial before a panel identified
in a specific convening order, and the convening order identifies particular
members to be added to the panel upon a triggering event, the process of
excusing primary members and adding the substitute members involves an
administrative, not a jurisdictional matter. Absent objection, any alleged defects
in the administrative process are tested for plain error.” Here there was no error.
Excusal of one officer and the one enlisted member prior to the excusal of the
other officer would have reduced the panel to ten members, five of whom were
officers and five of whom were enlisted. This triggered the one-third plus two
triggering event. Even if there was error in the triggering event, so long as the
members were listed on the convening order and the panel met the one-third
requirement, any error in the operation of the triggering mechanism was
administrative, not jurisdictional.

b. Court-Martial Convening Orders and harmless errorUnited States v.
, 66 M.J. 255 (C.A.A.F. 2008) (even though amending CMCO included
plain language that a new court-martial was “hereby convened,” court found
mistake was a mere harmless administrative error).

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