In United States v. Ward, No. 15-0059/NA (CAAFlog case page), CAAF is considering is the following issue:

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?

In its opinion in Ward, issued on July 31, 2104 (available here), the NMCCA found that members were excluded on the basis of rank (an improper basis for exclusion), but the court conducted a detailed analysis and concluded that the exclusion was harmless. The court reached the same conclusion (employing the same analysis) in United States v. Lesley, No. 201400271 (N-M. Ct. Crim. App. Feb. 26, 2015) (link to slip op.).

Yet in an opinion issued yesterday, the CCA reverses a conviction for aggravated sexual assault after concluding that the Government failed to meet its burden to prove that the exact same error, cause by the same member selection policy, was harmless:

We find the appellant has established that the instruction improperly excluded potential members from the selection process on the basis of rank. Thus we turn to the Government to determine if it has met its burden to show lack of harm——and find it has not. The Government has provided no evidence upon which this court can conclude the CA properly considered the Article 25, UCMJ, factors in selecting the members for the court-martial, or that he knew he was free to select members not on the list provided by his staff judge advocate (SJA).

In its answer, the Government notes that the COMNAVAIRLANT instruction specifically lists the requirements of Article 25d(2), UCMJ. While that is certainly a good thing, it sheds no light on what advice the SJA provided the CA, or on the selection process followed by the CA himself. We therefore find the Government has failed to meet its burden of showing the improper exclusion of potential members did not materially prejudice the appellant.

United States v. Thompson, No. 201400072, slip op. at 9 (N-M. Ct. Crim. App. Apr. 21, 2015) (link to slip op.) (citations omitted).

I think this a mighty curious result, particularly since the Government counsel for Thompson was also counsel for the Government in Ward and Lesley (so he certainly knew how to win this issue), and the three-judge panel that decided Thompson was composed of the same three appellate military judges who decided Ward, two of whom also participated in the decision in Lesley.

However, I can’t help but I note that the CCA’s opinion in Thompson was issued precisely five weeks after CAAF heard oral argument in Ward.

One Response to “The NMCCA changes its tune on the improper exclusion of members based on rank by the Commander, Naval Air Force Atlantic”

  1. iKennen says:

    A intra-circuit (intra-panel?) split!  Given the rather unique nature of this issue now, I wonder if the appellant in U.S. v. Ward might want to move CAAF to remand Ward to the NMCCA for reconsideration en banc?  It might make sense for CAAF to require the NMCCA to speak with one, consistent, voice before endeavoring to resolve an issue that might turn out to not need to be resolved at the CAAF level at all.