Unlike a civilian jury, where potential jurors are selected at random from the community based on DMV records, members of a military jury (known as a panel) in a court-martial under the Uniform Code of Military Justice (UCMJ) are personally selected by the Convening Authority (CA). This has obviously raised the concern that the CA might tend to appoint those members of the command whom he or she believes will vote to convict or impose a certain sentence since the CA is the same individual who decides what charges to bring against an accused servicemember, the forum or type of court-martial to convene, and is the same person that reviews any sentence adjudged by the panel.
The UCMJ provides the factors the CA is required to consider when selecting members to serve on a court-martial panel. Those factors are the member’s age, education, training, experience, length of military service, and judicial temperament. Typically, potential members complete a questionnaire that in theory is personally reviewed by the CA to evaluate the required factors. In practice, however, CAs commonly rely on the advice of their own lawyer when deciding who to appoint to a court-martial.
Earlier this year, the Court of Appeals for the Armed Forces decided to review the case of a Marine Corps Lance Corporal who was convicted of conspiracy to commit larceny, larceny, and making a false official statement. The Convening Authority in the case first appointed only officer members who were O-4s and above and enlisted members E-8 and above. The Convening Authority’s lawyer had solicited only those specific categories of members. The defense objected to the categorical exclusion of all other ranks and argued that excluding more junior ranks was evidence of an attempt to ‘stack’ the panel. The judge agreed and ordered a new convening order prepared.
The CA then issued another convening order with the exact same members but went on to state that he had considered all of the over 8,000 members of the command prior to selecting the same panel as the original convening order. The defense again objected but this time the judge overruled the objection. The Lance Corporal then elected to waive his right to a trial before members and instead elected to be tried by the military judge alone.
On appeal, the Navy and Marine Corps Court of Criminal Appeals held that the second convening order was not an improper exclusion of members based on rank since the Convening Authority said that he considered the entire command roster. The court concluded that even if the defense had demonstrated an improper exclusion of potential members, the government had met its burden of proving that the accused received a fair trial and panel of members. CAAF has previously said that the categorical exclusion of members based on rank was improper but that the error was harmless. Since this case raises a similar issue, CAAF could be signaling that it is willing to reconsider whether it is reversible error to systematically exclude members from court-martial panels based on rank alone. A decision is expected later this year.
The author is a Jacksonville military defense attorney.