U.S. v. Bartee, 76 M.J. 141

Military Justice Personnel: Court Members: Generally

1. Article 25, UCMJ, details who may serve on a court-martial, and the list includes commissioned officers, warrant officers, and, when specifically requested by the accused, enlisted members may serve on a court-martial of another enlisted member; if it can be avoided, members should not be junior in rank to the defendant; in addition, 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
2. an accused must be provided both a fair panel and the appearance of a fair panel
3. systemic exclusion of otherwise qualified potential members based on an impermissible variable such as rank is improper

Military Justice Personnel: Court Members: Eligibility/Selection

1. systemic exclusion of otherwise qualified potential members based on an impermissible variable such as rank is improper
2. a staff judge advocate can assist the convening authority in selecting members as long as this help does not improperly exclude any potential members
3. (three factors are most helpful in evaluating any process for screening potential members; these include looking for: (1) improper motive to “pack” the member pool; (2) systemic exclusion of otherwise qualified members based on an impermissible variable like rank; and
4. (3) good faith efforts to be inclusive so courts-martial are open to all segments of the military community)
5. lack of bad faith or improper motive is not dispositive in and of itself of the member selection process
6. a second court-martial panel was not tainted by the systemic exclusion of members based on rank during the initial selection process even though the second panel was identical to the first; the additional steps taken by the convening authority in connection with the second panel to include expressly considering the Article 25, UCMJ, selection criteria, personally selecting the panel only on the basis of that criteria, and confirming that he was cognizant of the roster of roughly 8000 Marines and sailors from which he could have drawn members, were sufficient to cure any systemic exclusion of members by rank

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

1. whether a court-martial panel was selected free from systematic exclusion is a question of law reviewed de novo
2. the burden is on the defense to establish the improper exclusion of qualified personnel from the selection process; once the defense establishes such exclusion, the government must show by competent evidence that the member selection process was free from impropriety