Gonzalez & Waddington – Attorneys at Law

Selecting a court-martial panel in the military

In general

Virtually any member of the Armed Forces is eligible to serve on a court-martial panel. However, the CA may only select those members who, in the CA’s personal opinion, are “best qualified” in terms of criteria set out in Article 25, UCMJ   UCMJ (2015).

Age, Experience, Education, Training, Length of Service and Judicial Temperament

The United States v. Hodge, 26 M.J. 596 (A.C.M.R. 1988), aff’d, 29 M.J. 304 (C.M.A. 1989) (holding cross-sectional representation of the military community on court-martial panel is not required by the Constitution); see also the United States v. Carter, 25 M.J. 471 (C.M.A. 1988) (holding no Sixth Amendment right that membership reflects a representative cross-section of the military population).

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The selection process remains controversial

The National Defense Authorization Act for FY 1999, § 552, required the Secretary of Defense to develop a plan for random selection of members of courts-martial as a potential replacement for the current selection process and present the plan and views of the code committee to the Senate Committee on Armed Services and the House Committee on National Security. The Joint Service Committee unanimously concluded that, after considering alternatives, the current practice of CA selection best applies the criteria in Article 25(d) in a fair and efficient manner.

A Report of the Commission on the 50th Anniversary of the Uniform Code of Military Justice, sponsored by the National Institute of Military Justice and chaired by Senior Judge Walter T. Cox III of the United States Court of Appeals for the Armed Forces, was forwarded to the Secretary of Defense and Members of Congress on 5 September 2001. Observing “[t]here is no aspect of military criminal procedures that diverge further from civilian practice, or create a greater impression of improper influence, than the antiquated process of panel selection,” the Cox Commission recommended modifying the pretrial role of the convening authority in both selecting court-martial members and making other pretrial legal decisions that “best rest within the purview of a sitting military judge.”

Guy Glazier, He Called for His Pipe, and He Called for His Bowl, and He Called for His Members Three – Selection of Military Juries by the Sovereign: Impediment to Military Justice, 157 Mil. L. Rev. 1 (1998). Cf. Major Christopher Behan, Don’t Tug on Superman’s Cape: In Defense of Convening Authority Selection and Appointment of Court-Martial Panel Members, 176 Mil. Rev. 190 (2003) (numerous articles collected and cited at footnote 25).

Challenges to the panel selection process – logistics

Proving the use of inappropriate criteria or command influence in panel selection – 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).

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.

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.

Command influence is, generally, harder to establish, but, once established, it is harder for the Government to disprove prejudice to the accused.

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) (a disproportionate number of high-ranking panel members did not create a presumption of impropriety in selection). See also the 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”).

Attacks on the nomination and selection memoranda

See United States v. Upshaw, 49 M.J. 111 (C.A.A.F. 1998); United States v. Roland, 50 M.J. 66 (C.A.A.F. 1999); and the United States v. Kirkland, 53 M.J. 22 (C.A.A.F. 2000).

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The convening authority’s responsibility to personally select members cannot be delegated

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) (the military judge said “it sounds like somebody has already selected a list of people to take into 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.

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 spill over to the CA.

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 the presence of Member B after the fact. Sentence set aside (accused had pleaded guilty).

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 the victim’s parents, so the case was convened by Commander, III Corps, and Fort Hood, who referred the case to a Fort Polk court-martial convening order (CMCO) with Fort Polk members. The issue on appeal was whether Corps CG personally selected the Fort Polk members. If not, a court-martial was “fatally flawed.” Case remanded for DuBay hearing.

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