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Challenges to panel selection process – logistics

Proving the use of inappropriate criteria or command influence in panel selection.
a. The burden. The defense shoulders the burden of establishing the improper exclusion of qualified personnel from the selection process. Once the defense establishes such exclusion, the Government must show by competent evidence that no impropriety occurred when selecting the accused’s court-martial members. United States v. Kirkland, 53 M.J. 22, 24 (C.A.A.F. 2000).

b. The standard of proof. Generally, the standard on both sides is a
preponderance of the evidence. RCM 905(c)(1). However, if the defense alleges that the convening authority violated not only Article 25 but also that the
convening authority tried, for example, to stack the court against him, then the
challenge is essentially one of command influence, and the command influence
standards apply.

(1) To raise an issue under Article 37, UCMJ, the accused must show
“some evidence” (i.e., facts which, if true, constitute unlawful command
influence, and that the alleged unlawful command influence has a logical
connection to the court-martial, in terms of its potential to cause unfairness
in the proceedings). United States v. Biagase, 50 M.J. 143, 150 (C.A.A.F.
1999). Once the issue is raised at the trial level, the burden shifts to the
Government, which may either show that there was no unlawful command
influence or show that the unlawful command influence will not prejudice

the proceedings. Id. The court must be persuaded beyond a reasonable

doubt that the findings and sentence will not be affected by command
influence. Id. at 151.

(2) Command influence is, generally, harder to establish, but, once
established, it is harder for the Government to disprove prejudice to the

c. Two general methods of proof. First, counsel may attack the array. See,
e.g., United States v. Nixon
, 33 M.J. 433 (C.M.A. 1991) (panel of E-8s and E-9s
creates an appearance of evil). Second, counsel can mount statistical attacks on
the array. See, e.g., United States v. Bertie, 50 M.J. 498 (C.A.A.F. 1999)
(disproportionate number of high-ranking panel members did not create
presumption of impropriety in selection). See also United States v. Fenwrick, 59
M.J. 737 (A.F. Ct. Crim. App. 2003) (holding “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”).

d. Attacks on the nomination and selection memorandaSee United States v.
49 M.J. 111 (C.A.A.F. 1998); United States v. Roland, 50 M.J. 66
(C.A.A.F. 1999); and United States v. Kirkland, 53 M.J. 22 (C.A.A.F. 2000).

2. The convening authority’s responsibility to personally select members cannot be
United States v. Ryan, 5 M.J. 97 (C.M.A. 1978); United States v. McCall, 26
M.J. 804 (A.C.M.R. 1988) (military judge said “it sounds like somebody has already
selected a list of people to take in to the convening authority and have him just kind of
stamp it;” ACMR agreed). But see United States v. Benedict, 55 M.J. 451 (C.A.A.F.
2001). The Chief of Staff (CoS) submitted a final list of members to the CA, who then
personally signed the convening order without asking any questions or making any
changes. Setting aside the decision of the Coast Guard Court of Criminal Appeals, the
CAAF held that the CA personally selected the nine prospective members set forth by the
CoS. See Judge Effron’s dissent for a comprehensive discussion of the history of Article
25, UCMJ.

a. United States v. Hilow, 32 M.J. 439 (C.M.A. 1991). The division deputy
adjutant general gathered a list of court member nominees who, in his opinion,
supported a command policy of “hard discipline.” Staff members can violate the
provisions of Article 37, UCMJ. Their errors will likely spillover to the CA.

b. Interlopers as a jurisdictional defect. United States vPeden, 52 M.J. 622
(A. Ct. Crim. App. 1999). Where Member A was selected by CA but Member B
was inadvertently placed on convening order, Member B was an “interloper”
whose presence constituted jurisdictional error. Convening authority not
permitted to ratify presence of Member B after the fact. Sentence set aside
(accused had pleaded guilty).

3. If members of another command are selected, they must also be personally selected
by the convening authority
United States v. Gaspard, 35 M.J. 678 (A.C.M.R. 1992)
Accused was assigned to Fort Polk. Commanding General, Fort Polk, was disqualified
after talking to victim’s parents, so case convened by Commander, III Corps and Fort
Hood, who referred case to a Fort Polk court-martial convening order (CMCO) with Fort
Polk members. Issue on appeal was whether Corps CG personally selected the Fort Polk
members. If not, court-martial was “fatally flawed.” Case remanded for DuBay hearing.

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