U.S. v. Dowty, 60 M.J. 163

First Principles: Constitutional Matters: Right to a Jury Trial

1. the Sixth Amendment right to trial by jury with accompanying considerations of constitutional means by which juries may be selected has no application to the appointment of members of courts-martial; a servicemember has no right to have a court-martial be a jury of peers, a representative cross-section of the community, or randomly chosen; but, the military defendant does have a right to members who are fair and impartial; this right is the cornerstone of the military justice system

Military Justice Personnel: Court Members: Generally

1. In Article 25, Congress has provided members of the armed forces with a valuable protection by requiring that the convening authority personally select those members of the armed forces best qualified to serve as court members by reason of judicial temperament and related statutory criteria

Military Justice Personnel: Court Members: Eligibility/Selection

1. Article 25(d)(2), UCMJ, provides that when convening a court-martial, the convening authority shall detail as members thereof such members of the armed forces as, in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament; no member of an armed force is eligible to serve as a member of a general or special court-martial when he is the accuser or a witness for the prosecution or has acted as investigating officer or as counsel in the same case; simply stated, this statute mandates the selection of members who are best qualified
2. three factors are most helpful in evaluating the propriety of any screening of servicemembers for eventual consideration by the convening authority for court-martial service; first, an improper motive to pack the member pool will not be tolerated; second, systemic exclusion of otherwise qualified potential members based on an impermissible variable such as rank is improper; and third, this Court will be deferential to good faith attempts to be inclusive and to require representativeness so that court-martial service is open to all segments of the military community
3. even though the record showed that the assistant staff judge advocate solicited volunteers to serve as court members, appellant failed to meet his burden of establishing the improper exclusion, with an improper motive, of qualified personnel from the selection process; the transparency of the assistant staff judge advocate in seeking volunteer members suggests that he had no improper motive in his attempt to develop a pool of potential members
4. it was error to inject into the panel selection process the irrelevant variable of a servicemember volunteering to be a member, and the novel method of soliciting for members in the Plan of the Week to identify volunteer members for the panel pool is rejected; this conclusion is consistent with the current federal rule that the use of volunteers violates both the letter and spirit of the Jury Selection and Service Act of 1968, 28 U.S.C. §§ 1861-1869 and its requirement of random selection
5. the practice of soliciting only volunteers for the panel pool is simply condemned
6. in this case, there was no showing of an improper motive by anyone involved in the nomination or selection of the members; the preliminary screening variable of volunteerism was irrelevant because there was no showing that this variable operated to exclude a discernable group or to diminish the representative nature of the pool, and the use of volunteers did not thwart the congressional procedure in Article 25(b)(2) for the selection of best qualified members because the convening authority personally selected the panel and applied the criteria of Article 25(d)
7. the failure of the assistant staff judge advocate to include the Article 25(d)(2) member selection factors of experience and education in his advice to the convening authority did not taint the convening authority’s personal selection of the members where the convening authority expressly stated that he reviewed the court-martial member questionnaires in making his selection and these questionnaires addressed both the factors of each member’s experience and education
8. the convening authority cured any error arising from the preliminary screening of the court-martial member panel pool using the impermissible variable of volunteerism by personally selecting the panel and applying the criteria of Article 25(d)

Military Justice Personnel: Staff Judge Advocate: Pretrial Advice

1. because the unorthodox method to obtain the panel pool of court-martial members by soliciting volunteers was so unusual and potentially affected the appearance of fairness of the panel, it was a matter about which the assistant staff judge advocate should have advised the convening authority before he selected the members

Military Justice Personnel: Convening Authority: Generally

1. actual appointment of fair and impartial members is the duty and responsibility of the convening authority; a convening authority’s power to appoint a court-martial is one accompanying the position of command and may not be delegated; it is blackletter law that the convening authority must personally select the court-martial members
2. the convening authority, while charged with the personal responsibility for the selection of court members, must have assistance in the preparation of a panel from which to choose those members; in order to carry out his function under Article 25, he must necessarily rely on his staff or subordinate commanders for the compilation of some eligible names
3. the military judge’s finding of fact that the convening authority personally selected the court-martial panel was not clearly erroneous where the convening authority stated that he selected the panel members based on the member questionnaires, did not review the list of nominations submitted by his staff until after he had selected the panel, and personally signed the selection sheet and convening order modification

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

1. 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 appellant’s court-martial members

Trial Stages: Pretrial: Investigations (Article 32)

1. ordinarily, an objection to the method of selection of the triers of the facts must be made before trial

Trial Stages: Pretrial: Pretrial Advice

1. because the unorthodox method to obtain the panel pool of court-martial members by soliciting volunteers was so unusual and potentially affected the appearance of fairness of the panel, it was a matter about which the assistant staff judge advocate should have advised the convening authority before he selected the members

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

1. the issue of impermissible screening of the panel pool is one that invites de novo review; however, the military judge’s findings of fact are binding unless they are clearly erroneous
2. 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 appellant’s court-martial members
3. the Government has the burden to demonstrate that the error in preliminarily screening the members by asking for volunteers to serve on a court-martial panel did not materially prejudice the substantial rights of the accused; in evaluating the prejudice, this Court focuses on the motive of those involved in the preliminary screening of panel members, the nature of the preliminary screening variable of volunteerism, and its impact on the selection of the members