Argument Preview: Whether members were excluded on the basis of rank in United States v. Bartee, No. 16-0391/MC
CAAF will hear oral argument in the Marine Corps case of United States v. Bartee, No. 16-0391/MC (CAAFlog case page), on Tuesday, November 15, 2016, at 9:30 a.m. The case presents a single issue that challenges the selection of members for the court-martial:
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?
The appellant, Lance Corporal (E-3) Bartee, was convicted contrary to his pleas of not guilty, by a general court-martial, of making a false official statement and larceny. He was sentenced to confinement for 20 months and a dishonorable discharge.
Bartee wanted to be tried by a court-martial composed of members with enlisted representation. Article 25 states that a convening authority must select members who, “in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament.” Rank – while often (but certainaly not always) a convenient proxy for some of these factors – is not one of the Article 25 criteria. However, it played a significant role in the selection of members in Bartee’s case.
The convening authority’s Staff Judge Advocate solicited members from subordinate units for Bartee’s court-martial, but limited this solicitation to:
officers in paygrade O-4 and above and enlisted personnel in paygrade E-8 and above.” (J.A. 22.) The Staff Judge Advocate solicited the senior Marines because, in his experience, those members “possess the requisite qualifications”—age, education, training, experience, length of service and judicial temperament. (J.A. 22, 26-27.)
Gov’t Br. at 3. The members ultimately selected for Bartee’s panel were all officers in pay grade O-4 and above and enlisted members in pay grade E-8 and above.
Bartee objected to the panel and the military judge ruled that the members were “improperly selected due to the exclusion of certain ranks from the selection process.” App. Br. at 5. The convening authority then selected a new panel. However, that panel contained the exact same members as the first panel:
The court reconvened at 0809 the following morning with General Court-Martial Convening Order 1c-13. There was no change in the panel from the day before. During the previous afternoon, the Government produced a new convening order that
1. deleted all the members,
2. added the same members it had just deleted, and
3. finalized the list of now-deleted and re-added members.19
App. Br. at 5. Nevertheless, the military judge found that this second panel was properly selected.
Bartee then elected to be tried by military judge alone, with his defense counsel stating that
in light of the Court’s ruling, it is the defense’s position at this time, that because we still believe there to be a defect of the panel, that we are forced to abandon our request for trial by members with enlisted representation, and we are requesting, and Lance Corporal Bartee is requesting, trial by military judge alone.
App. Rep. Br. at 3 (quoting record). The military judge threatened to deny this request on the basis that it was not voluntary, stating:
I doubt very much that I will find his foregoing of his right to a trial by members to be knowing, intelligent, and voluntarily; particularly voluntarily, if he is going to tell me he is doing it because he feels like he is forced to by the panel that he has here.
App. Rep. Br. at 4 (quoting record). Defense counsel then asserted that there was an additional, but confidential, reason to select trial by military judge alone. Gov’t Br. at 7. The military judge approved the request and Bartee was tried and convicted.
Bartee raised the panel selected on appeal but the NMCCA found no error, concluding: “We do not find any cause to question the fairness of the panel based on the processes used by the CA to generate convening order #1c-13.” United States v. Bartee, No. 201500037, slip op. at 8 (N.M. Ct. Crim. App. Jan 12, 2016) (link to slip op.).
CAAF then granted review of Bartee’s case and of another case raising substantially the same issue: United States v. Tso, No. 16-0497/MC (grant discussed here).
Last year, in United States v. Ward, 74 M.J. 225 (C.A.A.F. Jun. 11, 2015) (CAAFlog case page), CAAF held that an accused must be provided both a fair panel and the appearance of a fair panel. Bartee puts that standard of review to the test of a difficult fact pattern where the convening authority replicated a defective convening order. The case may also force CAAF to squarely address a persistent fiction in the selection of members by a convening authority, as revealed in this portion of the Government’s brief:
Contrary to Appellant’s assertion, (Appellant’s Br. at 11), there was no systemic exclusion of members based on rank. Indeed, after receiving the Convening Authority’s statement, the Military Judge found no systematic exclusion because the Convening Authority (1) had access to the Alpha Roster containing all 8,000 members of his command when he made his selections, and (2) selected the Members because he knew them personally and they met the Article 25, UCMJ, criteria.
Gov’t Br. at 11. While there is no reason to doubt the convening authority’s professed personal knowledge of the members who were selected, the notion that he gave any meaningful consideration to other members of his command because he had access to a roster of 8,000 names is absurd.
• NMCCA opinion
• Blog post: CAAF to revisit the exclusion of members on the basis of rank
• Appellant’s brief
• Appellee’s (Government) brief
• Appellant’s reply brief
• Blog post: Argument preview