U.S. v. Ward, 74 M.J. 225

Military Justice Personnel: Court Members: Eligibility/Selection

1. the two member selection cases, United States v. Kirkland, 53 MJ 22 (CAAF 2000), and United States v. Bartlett, 66 MJ 426 (CAAF 2008), can be read in conjunction with one another, giving effect to both; simply put, an accused must be provided both a fair panel (Bartlett) and the appearance of a fair panel (Kirkland); accordingly, Bartlett and Kirkland are not mutually exclusive and can be construed in harmony with one another
2. even if an appellant establishes a violation of Article 25, UCMJ, there exists no remedy for that violation if the government shows it was harmless
3. in this case, where an instruction on nominating court-martial members by the convening authority erroneously restricted the personnel that could be nominated by his subordinate commands to officers in the grades of 0-5 and below and to enlisted members in the grades of E-7, E-8, and E-9 (ie, the subordinate commands could not nominate personnel who were 0-6 and above or E-6 and below), where all of the convening authority’s own staff was subject to nomination as potential court-martial members, where prior to the convening authority’s selection of panel members, his FJA provided him with a draft convening order that detailed potential members to serve on the panel, but also advised him that he could choose the panel members recommended or choose anyone else within his claimancy that he deemed best qualified, and where the convening authority approved the convening order as drafted, which detailed two 0-5s, three 0-4s, one E-8, and six E-7s to the court-martial, the government met the standards under both Bartlett and Kirkland; under Bartlett, the government showed that the convening authority used the instruction without an improper motive; in a post-trial affidavit, the convening authority stated that in selecting members for courts-martial, it was not his intent to systematically exclude anyone on the basis of rank alone and the record supported that assertion; both the FJA and the convening authority acknowledged the convening authority was aware he could select anyone he chose from within his command, including members of his staff, as long as they met the Article 25, UCMJ, criteria; also, the convening authority had each member of his staff, regardless of rank, fill out a court-martial member questionnaire upon arriving on station; in addition, because a stated purpose of the convening authority’s nomination instruction was to supplement the pool of potential panel members from the convening authority’s staff, and because the convening authority did not utilize the instruction to systematically exclude specific ranks from his consideration, the instruction was not used with an improper motive; finally, under Kirkland, there was no unresolved appearance in this case that potentially qualified court members were excluded; although the nomination instruction by its own terms excluded certain categories of eligible court members, that exclusion only applied to potential members from the subordinate commands, not to potential members from the convening authority’s staff; therefore, the member selection process utilized by the convening authority met the Bartlett criteria, and under Kirkland, it did not leave an unresolved appearance that potentially qualified court members were excluded from consideration; Appellant was not prejudiced by the selection process error caused by the nomination instruction that impermissibly excluded servicemembers from the member selection process by virtue of their rank

Trial Stages: Appeals: Harmless / Prejudicial Error

1. where there is a nonconstitutional error in the application of Article 25, UCMJ, an appellate court must determine if the error materially prejudiced the substantial rights of the accused under Article 59(a), UCMJ
2. an appellate court reviews prejudice determinations under a de novo standard of review
3. even if an appellant establishes a violation of Article 25, UCMJ, there exists no remedy for that violation if the government shows it was harmless
4. in this case, where an instruction on nominating court-martial members by the convening authority erroneously restricted the personnel that could be nominated by his subordinate commands to officers in the grades of 0-5 and below and to enlisted members in the grades of E-7, E-8, and E-9 (ie, the subordinate commands could not nominate personnel who were 0-6 and above or E-6 and below), where all of the convening authority’s own staff was subject to nomination as potential court-martial members, where prior to the convening authority’s selection of panel members, his FJA provided him with a draft convening order that detailed potential members to serve on the panel, but also advised him that he could choose the panel members recommended or choose anyone else within his claimancy that he deemed best qualified, and where the convening authority approved the convening order as drafted, which detailed two 0-5s, three 0-4s, one E-8, and six E-7s to the court-martial, the government met the standards under both Bartlett and Kirkland; under Bartlett, the government showed that the convening authority used the instruction without an improper motive; in a post-trial affidavit, the convening authority stated that in selecting members for courts-martial, it was not his intent to systematically exclude anyone on the basis of rank alone and the record supported that assertion; both the FJA and the convening authority acknowledged the convening authority was aware he could select anyone he chose from within his command, including members of his staff, as long as they met the Article 25, UCMJ, criteria; also, the convening authority had each member of his staff, regardless of rank, fill out a court-martial member questionnaire upon arriving on station; in addition, because a stated purpose of the convening authority’s nomination instruction was to supplement the pool of potential panel members from the convening authority’s staff, and because the convening authority did not utilize the instruction to systematically exclude specific ranks from his consideration, the instruction was not used with an improper motive; finally, under Kirkland, there was no unresolved appearance in this case that potentially qualified court members were excluded; although the nomination instruction by its own terms excluded certain categories of eligible court members, that exclusion only applied to potential members from the subordinate commands, not to potential members from the convening authority’s staff; therefore, the member selection process utilized by the convening authority met the Bartlett criteria, and under Kirkland, it did not leave an unresolved appearance that potentially qualified court members were excluded from consideration; Appellant was not prejudiced by the selection process error caused by the nomination instruction that impermissibly excluded servicemembers from the member selection process by virtue of their rank

Trial Stages: Appeals: Remedies › Generally

1. even if an appellant establishes a violation of Article 25, UCMJ, there exists no remedy for that violation if the government shows it was harmless

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

1. where there is a nonconstitutional error in the application of Article 25, UCMJ, an appellate court must determine if the error materially prejudiced the substantial rights of the accused under Article 59(a), UCMJ
2. an appellate court reviews prejudice determinations under a de novo standard of review