U.S. v. Bertie, 50 M.J. 489

Military Justice Personnel: Court Members: Eligibility/Selection

1. the intent and purpose of the convening authority in selecting individuals to serve as court-martial members is an essential factor in determining compliance with Article 25(d)(2), UCMJ
2. although not entitled to a panel that represents a cross-section of the eligible military population, an accused is entitled to a panel selected without deliberate exclusion of lower grades and ranks (other than those junior to the accused), and one which is not purposefully stacked in that case with members of senior grades or ranks to achieve a desired result
3. make up of particular court-martial panel or of several panels over time might circumstantially suggest impermissible intent on the part of the convening authority, but other evidence in the record must be considered to determine whether an intent to stack the court actually existed
4. although make up of particular court-martial panel or of several panels over time might circumstantially suggest impermissible intent on the part of the convening authority, other evidence showed that convening authority intended to comply with Article 25 criteria where: (1) the SJA specifically advised the convening authority of proper selection criteria; (2) the convening authority acknowledged in a written memorandum that he used Article 25 in selecting members; and (3) appellant proffered no evidence to rebut government’s showing of proper selection
5. reasonable doubt concerning the use of improper court member selection criteria will not be tolerated; but no such doubt exists on this record where there was an extensive hearing and ample evidence of lawful conduct on the part of appellant’s convening authority

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Trial Burdens, Standards › Selection of members

1. Court of Appeals for the Armed Forces not inclined to recognize presumption that improper considerations of grade and rank were purposefully utilized by convening authority to stack courts based upon the composition of appellant’s court-martial and that of other panels within the command

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Trial Presumptions, Inferences

1. Court of Appeals for the Armed Forces not inclined to recognize presumption that improper considerations of grade and rank were purposefully utilized by convening authority to stack courts based upon the composition of appellant’s court-martial and that of other panels within the command

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Appellate Burdens, Standards, Etc. › Selection of court members

1. Court of Appeals for the Armed Forces not inclined to recognize presumption that improper considerations of grade and rank were purposefully utilized by convening authority to stack courts based upon the composition of appellant’s court-martial and that of other panels within the command

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. Court of Appeals for the Armed Forces not inclined to recognize presumption that improper considerations of grade and rank were purposefully utilized by convening authority to stack courts based upon the composition of appellant’s court-martial and that of other panels within the command

Miscellaneous Matters: Command Influence: Members

1. the intent and purpose of the convening authority in selecting individuals to serve as court-martial members is an essential factor in determining compliance with Article 25(d)(2), UCMJ
2. reasonable doubt concerning the use of improper panel selection criteria will not be tolerated in the military justice system