CAAF will hear oral argument in the Navy case of United States v. Ward, No. 15-0059/NA (CAAFlog case page), on Tuesday, March 17, 2015, at 9 a.m. The case presents the following issue regarding the convening authority’s selection of members for Appellant’s court-martial:

The convening authority issued an instruction that limited court-martial member nominations to personnel only in the pay grades between E-7 and O-5. The lower court found this systematic exclusion of personnel to be error, but harmless. Should this court set aside appellant’s convictions based on the rationale of United States v. Kirkland due to the unresolved appearance of unfairness?

Appellant was an E-2 who was convicted, contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of fleeing apprehension, rape, and communicating a threat, in violation of Articles 95, 120, and 134. He was sentenced to confinement for 933 days and a dishonorable discharge.

Prior to Appellant’s court-martial, the convening authority (Commander, Naval Air Force Atlantic (COMNAVAIRLANT)) issued an instruction that required subordinate units to nominate personnel to serve on courts-martial, specifically requiring nominations in pay-grades E-7 through O-5. No members detailed to Appellant’s court-martial were outside the range of E-7 through O-5.

Congress established the criteria for member selection in Article 25 (10 U.S.C. § 825). Rank is not among those criteria. However, Appellant did not object to the composition of the panel at trial. Rather, after trial, when Appellant’s defense counsel (seemingly) first learned of the convening authority’s instruction, Appellant sought either a rehearing or a post-trial session to litigate the issue of improper exclusion of members based on rank. The convening authority denied both of Appellant’s requests.

On review at the Navy-Marine Corps CCA, Appellant again raised the issue of improper exclusion of members based on rank. Despite the convening authority’s refusal to permit post-trial litigation to develop a factual record, the CCA allowed (“with the consent of Appellant,” Gov’t Br. at 7) the Government to attach three post-trial affidavits discussing the convening authority’s selection of members, including an affidavit from the convening authority himself. The CCA then concluded that the convening authority’s actions did impermissibly exclude members based on their rank, but that this error was harmless. CAAF then granted review of Appellant’s claim that the CCA erred in finding the error harmless (and the Government did not certify the CCA’s finding of error).

Appellant’s brief argues that CAAF should reverse the CCA and set aside the findings in this case for three reasons:

This Court has three reasons to reverse the lower court. First, [United States v. Kirkland, 53 M.J. 22 (C.A.A.F. 2000)] is the correct and controlling precedent. Second, the importance of the appearance of fairness in the member selection process is seminal to the military justice system. Lastly, despite a half-century of case law to the contrary, convening authorities continue to improperly exclude members by rank. This Court needs to send a message that this practice will not be tolerated. When convening authorities ignore this congressional mandate, it appears to the public that they are not fair arbiters in the military justice system.

App. Br. at 8-9. Notably, in Kirkland, the appellant pleaded guilty before a court-martial composed of members. Affirming the findings but reversing the sentence (that was adjudged by the members), CAAF held that:

Even though the military judge found that neither the SPCMCA nor the GCMCA used rank as a criterion in the selection process, where an unresolved appearance that potentially qualified court members below the grade of E-7 were excluded, reversal of the sentence is appropriate to uphold the essential fairness and integrity of the military justice system.

No more than that is needed, however, because there is no indication that the exclusion of enlisted members below the grade of E-7 induced appellant’s guilty plea, nor does he attack its voluntariness.

Kirkland, 53 M.J. at 25.

In Ward, Appellant’s argument is primarily based on the assertion that CAAF “should reemphasize an appearance standard for member-selection issues.” App. Br. at 13. However, Appelant’s brief also highlights an important factor in CAAF’s precedent:

When a preliminary screening of panel members improperly excludes by rank, the Government has the burden to “demonstrate lack of harm.” [United States v. Bartlett, 66 M.J. 426, 430 (C.A.A.F. 2008)] (citing United States v. Dowty, 60 M.J. 163, 175-75 (C.A.A.F. 2004)).

App. Br. at 11 (emphasis added). Notably, Bartlett was decided after Kirkland, and Bartlett identified factors to consider when determining whether the Government has met its burden to show harmlessness. The CCA applied Bartlett to conclude that the improper selection in Appellant’s case was harmless. Yet rather than simply challenge the CCA’s application of the Bartlett factors and assert that the Government failed to meet its burden, Appellant’s brief flips the burden on its head:

Under this standard, however, there is no practical way for an appellant to ever show prejudice from an improperly selected panel. Appellants are essentially left without any recourse for a convening authority’s violation of the UCMJ. This result undermines the fairness of the members selection process and eviscerates Article 25, UCMJ.

App. Br. at 12 (emphasis added). The Government is all too willing to adopt the premise of Appellant’s reasoning on this point:

Here, Appellant has not pointed to any specific evidence that the Members were not fair or impartial or that he was prejudiced because of any unfairness or impartiality.

Gov’t Br. at 21 (emphasis added). CAAF’s decision in this case will likely provide unequivocal guidance on whether an appellant must identify the source of prejudice in a case where a convening authority applies improper criteria to select members, or whether it is the Government that must prove the negative. CAAF may also address how any appellant could meet a burden to show prejudice when the facts of the improper criteria are discovered post-trial and the convening authority denies a defense request for a post-trial hearing.

Yet the Government’s brief makes the curious claim that the CCA “erred in concluding that the ‘record is clear that service members were impermissibly excluded from the member selection process by virtue of their rank.'” Gov’t Br. at 11. This claim is curious because the Government did not certify the CCA’s finding of error to CAAF (a point emphasized in Appellant’s reply brief). Recent CAAF oral arguments have included expressions of displeasure from the bench when the Government tries to argue that a CCA’s conclusion was wrong without properly placing the issue before CAAF (and CAAF actually changed its rules to make this easier on the Government, as discussed here). The argument in this case will likely include similar expressions during the Government’s presentation.

But Appellant’s argument that CAAF “should reemphasize an appearance standard,” App. Br. at 13, may ultimately fail under its own weight. If, as Appellant claims, “when members are systematically excluded by rank, in direct contradiction to Congressional mandate, there is an appearance of unfairness,” App. Br. at 16, then one might expect that Appellant’s defense counsel would have noticed that appearance and made an objection when Appellant’s court-martial included no members below the grade of E-6 (despite Appellant being an E-2). But counsel did not object. Rather:

During trial and after motions, Appellant received the Members questionnaires. Each of them indicated at the top of each page the Instruction used for Members nominations from subordinate commands, Commander, Naval Air Force Atlantic Instruction (COMNAVAIRLANTINST) 5813.1H. Appellant made no objection at trial to the nomination or detailing of Members. Appellant challenged three Members, two of which the Military Judge granted. Appellant then made two peremptory challenges per the Military Judge’s ruling on the Defense’s unlawful command influence Motion. After voir dire of 203 pages, Appellant again had no objection.

Gov’t Br. at 3-4 (citations to record omitted). These facts give the impression that Appellant considered the panel composition to appear unfair only after he was convicted.

A postscript: Appellant claims that the exclusion of members outside the range of E-7 through O-5 was discovered in a case tried after this case. The NMCCA recently considered the selection of members in that other case, finding error but no prejudice with analysis similar to that employed in this case. See United States v. Lesley, No. 201400271 (N-M. Ct. Crim. App. Feb. 26, 2015) (link to slip op.).

Case Links:
NMCCA opinion
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview

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