CAAF decided the Navy case of United States v. Ward, 74 M.J. 225, No. 15-0059/NA (CAAFlog case page) (link to slip op.), on Thursday, June 11, 2015. The court holds that even though the convening authority violated Article 25 when he improperly excluded members on the basis of rank, and the Government committed a discovery violation by failing to disclose the exclusionary selection criteria to the defense (both violations being the law of the case as they were found by the CCA and not appealed to CAAF), the appellant was not prejudiced because the panel for his court-martial was fair in fact and in appearance. Finding the error harmless, CAAF affirms the decision of the Navy-Marine Corps CCA and the appellant’s convictions.

Judge Erdmann writes for a unanimous court.

The 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 the 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 the court-martial were outside the range of E-7 through O-5. Rather, the panel “was comprised of one 0-4, one E-8, and 6 E-7s.” Slip op. at 5.

Congress established the criteria for member selection in Article 25 (10 U.S.C. § 825). Rank is not among those criteria. However, the appellant did not object to the composition of the panel at trial. Rather, after trial, when his defense counsel first learned of the convening authority’s exclusionary instruction, the appellant sought relief from the convening authority. The convening authority denied relief. On appeal, the CCA 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, with 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?

Notably, the Government did not certify the CCA’s underlying finding of error, and so “the sole issue before [CAAF] is whether the violation of Article 25, UCMJ, as held by the CCA, prejudiced Ward.” Slip op. at 6.

Judge Erdmann’s opinion reconciles two precedents. In United States v. Kirkland, 53 M.J. 22 (C.A.A.F. 2000), CAAF “found a violation of Article 25, UCMJ, and held that ‘where an unresolved appearance that potentially qualified court members . . . were excluded, reversal of the sentence is appropriate to uphold the essential fairness and integrity of the military justice system.'” Slip op. at 8 (quoting Kirkland, 53 M.J. at 25) (omission in original). Eight years later, in United States v. Bartlett, 66 M.J. 426 (C.A.A.F. 2008), CAAF held that it could not find harm in a violation of Article 25 “unless the error materially prejudiced the substantial rights of the accused.” Slip op. at 8 (quoting Bartlett, 66 M.J. at 429-30). The court in Bartlett also set fourth six factors to determine the existence of harm:

(1) the convening authority enacted or used the instruction with a proper motive;
(2) the convening authority’s motivation in detailing the members he assigned to the court-martial panel was benign;
(3) the convening authority who referred the “case to trial was a person authorized to convene” the court-martial;
(4) the appellant “was sentenced by court  members personally chosen by the convening authority from a pool of eligible” members;
(5) the court members “all met the criteria in Article 25, UCMJ;” and
(6) “the panel was well-balanced across gender, racial, staff, command, and branch lines.”

Slip op. at 9 (quoting Bartlett, 66 M.J. at 431) (paragraphing added). Of note, the NMCCA applied these Bartlett factors to find error but no prejudice in this case.

Judge Erdmann explains that these precedents work in harmony:

In our view, the two cases 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).

Slip op. at 10 (emphasis added).

Turning to the facts of this case, Judge Erdmann explains puts the court’s unanimous conclusion simply:

Based on our review of the convening authority’s actions in this case, we believe that the government has met the standards under both Bartlett and Kirkland.

Slip op. at 11. He elaborates, explaining that “under Bartlett, the government has shown that the convening authority used the instruction [containing the exclusionary criteria] without an improper motive.” Slip op. at 11. “Indeed, a review of the post-trial affidavits shows an honest, though erroneous, attempt to meet the requirements of both Article 25, UCMJ, and the command’s mission.” Slip op. at 12 (a footnote notes that the Government has also satisfied the other Bartlett factors). Further, under Kirkland, “due to the record developed at the court-martial and the CCA, there is no unresolved appearance that potentially qualified court members were excluded.” Slip op. at 13 (marks and citation omitted).

Notably, the NMCCA recently changed its tune regarding the lack of prejudice for this particular error. As I noted in this post, the service court held that the Government failed to meet its burden to show harmlessness in a different case involving the exclusion of members using the same exclusionary criteria. The Government has not (yet) certified that case to CAAF, though I’m told it is seeking reconsideration by the CCA.

CAAF’s decision in this case seems to embody “the paradox of no meaningful relief for a patent error.” United States v. Durant, 16 M.J. 712, 712 (A.F.C.M.R. 1983) (discussing the erroneous denial of a request for deferment). CAAF even seems to recognize as much, suggesting that the President create a remedy for an otherwise-harmless violation of Article 25:

This court recognizes that, under the current state of the law, 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. We note this situation to alert the Joint Service Committee on Military Justice, in the event it may wish to consider a recommendation to the President a procedure by which the requirements of Article 25, UCMJ, may be enforced in the absence of prejudice.

Slip op. at 11 n.5. Unfortunately, Judge Erdmann gives no hint as to what such a procedure might look like.

Case Links:
NMCCA opinion
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview
Oral argument audio (enhanced version)
CAAF opinion
Blog post: Opinion analysis

4 Responses to “Opinion Analysis: A fair panel and the appearance of a fair panel in United States v. Ward, No. 15-0059/NA”

  1. Grey says:

    So they applied the harmless error standard, even though the government’s discovery violation is what prevented the appellant from objecting at trial?

  2. Zachary D Spilman says:

    The appellant was an E-2 facing a panel composed of “one 0-4, one E-8, and 6 E-7s,” slip op. at 5, drawn from a venire of “two 0-5s, three 0-4s, one E-8, and six E-7s,” slip op. at 4.

    If the defense didn’t object to the panel’s composition on these facts alone, there’s no reason to believe that they would have objected had they known about the exclusionary instruction. 

  3. Phil Cave says:

    After reading the opinion, I wonder if the opinion is as broad as people may take it for.
    Unless I misunderstood the facts in the opinion, this was not a blanket proscription against all, just those not assigned to the staff.  I read the facts as a CA willing to select from all of his staff regardless of rank, it’s just that the fillers from other commands were limited.
    If that’s the case, then what about a situation where the CA has a blanket proscription against all above and below certain ranks.
    Also, I’m not so sure of this but are the factors in Bartlett related to why there was an error or to a prejudice analysis.  I’m wondering if the two are different.  I’m thinking of this particular “line” from the Sullivan brief.  (And is Sullivan next?)

    Citing Bartlett, 66 M.J. at 431, the CGCCA found “not improper” and “benign” three justifications for excluding all flag officers: (1) “the Convening Authority’s future assignment responsibilities, [(2)] the possibility of a flag officer’s undue influence on other members, and [(3)] expected availability issues.” (J.A. at 5) (bracketed numbers added.) These considerations quite simply do not concern harmlessness; if anything, they concern whether error was committed (which the CGCCA found had occurred).

  4. Charlie Gittins says:

    Some days, I want to puke when I read MJ decisions.  This is one of those days.  Error, objection, no relief.  WTF?  We are still the JV.