Congress provided specific criteria for member selection in Article 25(d)(2):

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.

Rank is not one of these factors. Last term, in United States v. Ward, 74 M.J. 225 (C.A.A.F. 2015) (CAAFlog case page), and United States v. Sullivan, 74 M.J. 448 (C.A.A.F. 2015) (CAAFlog case page), CAAF found the improper categorical exclusion of members on the basis of rank to be harmless. But with a grant of review on Monday, CAAF will revisit this issue:

No. 16-0391/MC. U.S. v. Emmanuel Q. Bartee. CCA 201500037. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

THE SYSTEMATIC EXCLUSION OF INDIVIDUALS BY RANK FROM THE MEMBER-SELECTION PROCESS IS PROHIBITED. HERE, THE MILITARY JUDGE DISMISSED THE PANEL FOR VIOLATING ARTICLE 25, UCMJ, BUT THE CONVENING AUTHORITY RECONVENED THE EXACT SAME PANEL THE SAME DAY. IS THIS SYSTEMATIC EXCLUSION BASED ON RANK REVERSIBLE ERROR?

Briefs will be filed under Rule 25.

The NMCCA’s opinion is available here and reveals that:

Prior to trial, the defense objected to the exclusion of junior members under convening order #1b-13, which appointed only officer members O-4 and above, enlisted members E-8 and above, and no warrant officers. This panel was detailed after the staff judge advocate (SJA) solicited only these specific categories of senior nominees from subordinate commanders. The SJA provided the CA draft convening order #1b-13 and the applicable questionnaires for consideration. The CA then picked those members as were suggested to him by the SJA without modification. The military judge agreed with the defense’s objection finding that the panel selection process improperly excluded potential members based on rank.

Subsequently, the CA was provided a draft, amended convening order, #1c-13, containing the same members previously detailed under convening order #1b-13. The CA was also furnished with his entire alpha roster of over 8,000 members with instructions that he could substitute any proposed member for someone senior to the accused meeting the Article 25 criteria. After consideration, the CA detailed the same members stating, “I know these individuals personally and selected them specifically because I am convinced they meet the qualifications for membership.”

Slip op. at 5. The military judge found no impropriety in the second convening order and the CCA affirmed.

38 Responses to “CAAF to revisit the exclusion of members on the basis of rank”

  1. Lone Wolf says:

    Stuff like this is why CA’s don’t belong in the process for non-military felony offenses. Pretty clear this was a paperwork solution to a judge’s concern about a systematically unfair panel. Absolutely no interest in fairness, or even the appearance of it. 

  2. Zachary D Spilman says:

    Non-military felony offenses, Lone Wolf? He was convicted of conspiracy to commit larceny, false official statement, and larceny. From the CCA’s opinion:

    Over the course of several months in 2013, the appellant conspired with two civilians to use fraudulent credit cards to steal gifts cards and electronics from Navy and Marine Corps exchanges around San Diego, California.

    Seems pretty solidly service-connected to me. 

    In any event, any failure here belongs on the shoulders of the judge advocates who advised the commander; the very people who would be put in charge if the commander were removed as convening authority. As I wrote in 2014

    The inability of military lawyers to get the job done is a reason to take a hard look at the leadership within the military’s legal communities. It is not a reason to reward failure by giving that leadership even greater responsibility.

  3. Bill Cassara says:

    I don’t see this as the fault of the CA, who likely simply rubber stamped what his SJA told him to do.  The fault lies with the SJA, who I am sure will receive a well deserved negative OER for this. Oh. Wait. Never mind.

  4. stewie says:

    I don’t know Bill, if I were that CA, and my SJA had recommended a panel that later was apparently wholly illegal and we had to start all over again and cases had to be delayed, I might not give that SJA the highest of ratings.

  5. Gwarrior says:

    Isn’t rank indicative of experience?

  6. That Guy says:

    If the FRAGO (or tasking order or memorandum or phone call) for nominations would have included one singe line “and include any other Service member in Title 10 status who you believe meets the Article 25 criteria, regardless of rank.”  Would the outcome be different? Would the nominations be different? How do warrant officers always get left off of taskings? The answers are no, no, and that’s why they are warrants.

  7. Alfonso Decimo says:

    Zack makes a great point he’s made before. To the extent the CAs get it wrong, it should be laid at the feet of the SJAs. I doubt the CAs are disregarding SJA advice, but someone could study that theory; I think they’ll find zero instances. Zack reaches the more logical conclusion. The military lawyers are not measuring up to the task. The wrong answer would be to transfer the CA’s authority to this same group of lawyers. 

  8. Zachary D Spilman says:

    Rank is – in part for the reason Gwarrior suggests – often used as a proxy for the selection criteria of age, education, training, experience, length of service, and judicial temperament. It is, however, a poor proxy, as history is replete with examples of brilliance in the lower ranks (and incompetence on high). Moreover, in our modern all-volunteer force, it’s not that unusual to find well-educated, well-tempered, experienced personnel at the lower ranks. 

    The answer is simple. Rosters and other selection material provided to convening authorities should omit any reference to rank. 

    CAAF could easily make this so without granting a windfall to this appellant (assuming that’s an issue). It need only:

    simply condemn the practice of [considering rank] for the panel pool.

    United States v. Dowty, 60 M.J. 163, 173 (C.A.A.F. 2004) (condemning the practice of soliciting volunteers).

  9. Bill Cassara says:

    Some years ago V Corps in Germany experimented with “random” pools.  Basically, the CA picked a couple of hundred folks, and they came up in groups of 12 and reported to panel duty (or something similar to that.)  The idea of hand picking members is so anachronistic and needs to be stopped.

  10. Matt says:

    Stewie,
    The problem with your comment, is that it is very unlikely that the SJA is still working for the same CA.  At least in the Army, people are shuffled so quickly I doubt many are still in the same position working for the same Boss by the time a decision from CAAF comes down.  So the next question is whether it is likely that a new CG is going to negatively rate an SJA for advice given to a previous CG.  Not likely.

  11. stewie says:

    True Matt, I forgot about the time delay…but we don’t ordinarily give anyone a bad rating for a work-based decision (i.e. not misconduct) that occurs in a prior rating period.  Still, that SJA has a bit of a rep now.

  12. Zeke Kennen says:

    It would be possible to commend the uniform code in may other respects and the greatest credit is due to its framers for their work of codification.  The difficulty, however, is that the basic reform which the court-martial system requires and without which no real reform is possible–the elimination of command control from the courts–is conspicuously missing.  Under the uniform code the commending general will still appoint the members of the court [and] the trial counsel . . . from members of his command, and will review the findings and sentence.  We will still have the same old story of a court and counsel, all of whom are dependent upon the appointing and reviewing authority for their efficiency ratings, their promotions, their duties, and their leaves.
     

    Hearings on H.R. 2498 at 646, Subcommittee, House Armed Services, 81st Cong. (1949) (statement of Arthur Farmer, Chairman, Committee on Military Law, War Veterans Bar Association).
     
     

  13. Lone Wolf says:

    I’m a Navy guy, and a basic tenant is that Commanders are responsible for command at all times, they don’t get to blame the lawyers. That being said, SJAs are often more focused with getting to yes than they are at applying the law. Remove CAs and you’ll move the cases from operationally focused SJAs to military justice focused career litigators. That’s a different group of lawyers all together, at least in the Navy. 
     
    The commander added zero utility to this case, and is responsible for the set aside, he doesn’t get to blame anyone. I don’t think a senior trial counsel would have made the same mistake this CA (and by popular opinion his SJA) made. 

  14. Tami a/k/a Princess Leia says:

    “I pick these folks because, out of 8,000 military personnel under my command, I just happen to know these folks personally….”  Nothing like injecting some unlawful command influence into the case.

  15. LT Weinberg says:

    C’mon, Tami. Not all command involvement is Unlawful Command Influence. You may not like this feature of the military justice system (i.e., that the commander gets to pick members whom he knows personally), but t’aint unlawful in the slightest.

  16. Stephen Wilson says:

    C’mon, LT Weinberg: It is just one more thing that appears to further remove “justice” from the military justice system to which you refer. 

  17. HammerTime says:

    The MILJUS system is built for one purpose and one purpose only:  to expel the problem folks quickly so our warfighters can protect us from the bad guys.  If it’s not fair enough for you, don’t sign up for service.  Last time I checked we’re still a volunteer force. 

  18. Matt says:

    HammerTime, That’s funny, I thought there was this whole goal of promoting justice as well.  Administrative separations are the way to quickly expel a problem child.  If you want to tack on a court-martial conviction, there is this weird due-process thing that gets involved…

  19. Zeke Kennen says:

    HammerTime said:

    The MILJUS system is built for one purpose and one purpose only:  to expel the problem folks quickly so our warfighters can protect us from the bad guys.  If it’s not fair enough for you, don’t sign up for service.  Last time I checked we’re still a volunteer force. 

     
    We should be building a military justice system that accommodates the needs of our armed forces today, and also the needs of our armed forces in the future. It is when operational needs are the highest, and the stakes are most dire, that our nation has historically resorted to conscription – the 1860s (Civil War), 1917 (WWI, after only 73k Americans volunteered to serve), 1941-1946 (WWII, with 10 million conscripts), 1950-1953 (Korea, with 1.5 million conscripts), and 1964-1972 (2.2 million conscripted for service in Vietnam, the United States, and West Germany).  It is inevitable, we will conscript again – our UCMJ should be built to protect the constitutional rights of the millions of future Americans, our children, who will serve because their government forced them to. 

  20. HammerTime says:

    Volunteer or draft, no matter.  If you get drafted, don’t be a derelict and you won’t have to worry about the system.  If you’re a derelict, the system is going to mudstomp your sorry butt.  And I want my commanders picking panel members who they know will do the right thing, namely, get rid of the trash.  Courts-martial should always err on the side of preserving the warfighters’ mission, not the rights of the individual derelict.  You folks act like the military is not different than our libtard-heavy civilian society.  You should realize that it damn well is different.

  21. Tami a/k/a Princess Leia says:

    HammerTime, have you not been paying attention to the people who insist that the MJ system be more like the civilian system? Except the recommendations to change the MJ system to be more like the MJ system don’t include recommendations that benefit the accused, such as a binding result from the Article 32 hearing, or a unanimous verdict in non-DP cases?  Used to be that the portions of the MJ system that didn’t favor the accused (like only needed 2/3 to convict) were balanced by other provisions.  Used to be….
     
    Also, I could have sworn everyone who signs up for military service takes an oath to defend and uphold the US Constitution, which still applies to service members in many aspects.  But perhaps I’m wrong?

  22. Vulture says:

    And WE the people suffers the contempt of We few, we merry few.

  23. stewie says:

    methinks HammerTime is just trolling us.

  24. HammerTime says:

    Yeah, Stewie, because no one would dare question the libtards’ agenda???

  25. Troll Patrol says:

    Go play somewhere else, HammerTime.  If you have paid attention at all on this site, you know that virtually everyone questions everything.  It is also very evident (I’m a frequent visitor to this site but rarely contribute) that most of the folks here care about the military – even when they don’t agree with each other.
    Don’t go away mad; just go away…
    Sheila M. Lundlee
    SSgt, USAF, Retired

  26. Philip Cave says:

    Isn’t rank indicative of experience?

    Not necessarily.
     
    I have had the privilege to serve with or meet many excellent and experienced LT’s in the Navy and Captains in the USMC.  They are mustangs, LDO’s, or have prior enlisted service.  I generally like them on the panel because they do have a mind of their own and are willing to speak up.
    Age and experience is also a criteria for selection to a panel.  So when a CA ignores these factors and defense solely to rank is that commander properly exercising judgment under Art. 25? 

  27. Philip Cave says:

    Duh–“defers” not “defense.”
     
    And what Zeke says.

  28. stewie says:

    Thanks for the confirmation HT.

  29. Tami a/k/a Princess Leia says:

    The last SHARP summit I attended was very interesting–a lot of 1LTs and junior CPTs asked the panel members point blank what was being done to protect an accused’s due process rights, and what is done to protect an accused from false allegations.  Keep in mind there had recently been a full acquittal.  Also questions about what “incapacitated” meant, but the audience was told they were getting “off track.”
     
    Rank is irrelevant.  The CA should pick those willing to keep an open mind and listen to both sides of the case before making a decision.  Let the lawyers for the parties worry about whether the panel members are ultimately “qualified” to make a decision about that particular case.

  30. HammerTime says:

    Rank is always relevant.  I want higher ranking folks who have seen combat on my panels.  You know, the guys who understand the stakes of the game.  Not some crusader 1LT who thinks everything is unicorns and rainbows. 

  31. Tami a/k/a Princess Leia says:

    So you would prefer the O4 who never saw direct combat over the E5 who did, based simply on rank?  Hmmm…..

  32. k fischer says:

    “Is that you, MG Stammer?  Is this me?”
     

    If you get drafted, don’t be a derelict and you won’t have to worry about the system.  If you’re a derelict, the system is going to mudstomp your sorry butt.  And I want my commanders picking panel members who they know will do the right thing, namely, get rid of the trash.  Courts-martial should always err on the side of preserving the warfighters’ mission, not the rights of the individual derelict.

     
    I would bet that you do not practice law in the military, or if you are a lawyer, then haven’t since 2009 based on your views that betray the patina of a bygone era when Judge Advocates and Commanders were not pressured by Congress and actually avoided bringing innocent individuals before a Court-martial to “mudstomp” them.  You sound more like the Commander when I was a TC who wanted to give a Soldier an Article 15 because he disobeyed an order to “eat lettuce” in the chow hall, or the Commander who didn’t understand why I couldn’t advise him to throw a Ranger in pretrial confinement because he popped hot for weed on one urinalysis.   I would venture to guess that you are at least a General Officer.
     
    The funny thing about what you write is that if you are brought before a Court-martial on charges that are similar to some of the cases I have defended, then I would imagine that you would not plead guilty and allow your Commander to “get rid of the trash.”  You would be as perplexed as to how your case made it to a GCM as my clients are.   With you, the UCMJ applies to mudstomp everyone else and you have no problem with Servicemembers facing a Court-martial on baseless charges, until you are sitting in the Accused’s chair.
     
    Get with the times, old man.  You are a relic, a hypocrite, and out of touch with how things work in the world today. 

  33. stewie says:

    kf, I’m not even convinced this guy was in the military at all.

  34. Bill Cassara says:

    KF:  Get with the program. The commander preferred charges, ergo the accused is guilty, and should be stomped out of the military. 

  35. HammerTime says:

    KF,
    A relic?  Yep, you bet.  A hypocrite?  Only if we live in your dream world where I could end up in the accused’s chair…we all control our own destinies…folks don’t end up in the accused’s chair by accident.  Out of touch?  With the finer points of the legal world, yes.  With the finer points of putting lead into our enemies, not so much.
    And as to your examples of commanders’ decisions:  the lettuce example, yeah, that’s asinine…that commander should be organizing picnics…had to be a service support unit.
    As to your Ranger example, I’m surprised you’re not more sympathetic to where the CO was coming from in that one.  I realize that positive drug results are a fairly common occurrence in non-SOF units.  In the Rangers and other SOF units, it is very rare and a very big deal.  I’m not at all surprised that commander wanted to send a message to his other Rangers.

  36. LT Weinberg says:

    KF,
    Hammertime is right. It says right there in RCM 305 that one proper justification for pretrial confinement is to “send a message.”  
    –breakbreakbreak–
    Hammertime,
    Keep it coming. Whether you are for real or not, it’s welcome comic relief. I like the caricature-of-the-member-who-gets-kicked-for-cause thing you’ve got going here.  

  37. LT Weinberg says:

    C’mon Stephen Wilson. Tami characterized this practice as unlawful command influence. Is it? Hint: Try to see the distinction between “unlawful command influence” and “undesirable policy.” 

  38. Tami a/k/a Princess Leia says:

    Would have been great to get some clarification on the record–why did the CA select those he knew “personally” as opposed to those who were nominated and otherwise met the Article 25 criteria, but not known by the CA personally?  I would say the failure to select someone because they aren’t personally known to the CA is enough for a violation of Article 25, UCMJ.
     
    “I know them personally, ergo I know how they would vote (guilty) and I know what kind of punishment they’d dish out (confinement and a punitive discharge).”
     
    “And because they know me personally, they know I wouldn’t waste my time referring a case to court-martial if there wasn’t something to the accusation.”
     
    Now if there was some testimony from the CA along the lines of, “I selected Zach Spilman, Phil Cave, Bill Cassara, k fischer, stewie, and Tami a/k/a Princess Leia, because I know them personally.  I know them to meet each of the Article 25 criteria.  I also know each of them to be very diligent in applying that beyond a reasonable doubt standard, so I’m confident that they will hold the Government’s feet to the fire, and I’m confident that if they are not personally convinced beyond a reasonable doubt, they will find the accused not guilty.  I also know them personally in that, if they do find the accused guilty, I know they will consider all the aggravating, mitigating, and extenuating evidence and vote for an appropriate sentence that considers not just the offense(s) of which the accused is found guilty, but they will also take into account the character of the accused.  I know them personally that they will come up with a sentence that is just, under the circumstances,” this would be a much different record, one that appellate courts would have no problem supporting.  BUT we don’t have this kind of record….