CAAF decided the Marine Corps case of United States v. Bartee, __ M.J. __, No. 16-0391/MC (CAAFlog case page) (link to slip op.), on Wednesday, March 15, 2017. A majority concludes that there was no systemic exclusion of court-martial members on the basis of rank despite the fact that the convening order duplicated an earlier order that was found to have systemically excluded, affirming the decision of the Navy-Marine Corps CCA.

Judge Sparks writes for the court, joined by Judges Stucky and Ohlson. Judge Ryan concurs. Chief Judge Erdmann dissents.

CAAF granted review of a single 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?

Lance Corporal (E-3) Bartee demanded trial by a general court-martial composed of members with enlisted representation. The convening authority’s staff judge advocate prepared a draft convening order appointing only officers at paygrade 0-4 and above and enlisted personnel at paygrade E-8 and above, and the convening authority signed that order. But Bartee objected to the composition of the panel on the basis that it improperly excluded members of junior ranks.

Article 25 requires a convening authority to select members based on various criteria, but rank is not among them. “[T]he military judge sustained Appellant’s objection to the panel and found that the selection process had excluded potential members based on rank.” Slip op. at 2. But then:

The staff judge advocate then provided the convening authority (now General Coglianese) with an amended convening order (1c-13) consisting of the same list of names. The convening authority also received the full roster of over 8,000 potential members and was informed he could substitute any of those names who fit the Article 25, UCMJ, criteria if he so desired. The following day (September 30th, 2014), the convening authority appointed the exact same panel. In a letter addressed to the military judge he stated that, “I know these individuals personally and selected them specifically because I am convinced they meet the qualifications for membership.” He also confirmed that he recognized he could have chosen from among the full roster of “roughly 8,000 Marines and sailors” and that he personally selected this panel based on Article 25, UCMJ, criteria.

Slip op. at 2-3 (emphasis added). Bartee renewed his objection but the military judge overruled it, “finding that any appearance that the members had been excluded according to rank was resolved by creation of the second order in compliance with Article 25, UCMJ.” Slip op. at 3. Bartee then elected to be tried by a military judge alone rather than by the relatively high-ranking panel.

Judge Sparks’ opinion for the court affirms the military judge’s ruling with the conclusion that “there was no systemic exclusion of members based on rank and that the convening authority did not violate Article 25, UCMJ.” Slip op. at 2. In reaching this conclusion Judge Sparks applies the three-factor analysis from United States v. Dowty, 60 M.J. 163, 171 (C.A.A.F. 2004), which includes whether the case involves:

(1) Improper motive to “pack” the member pool;

(2) Systemic exclusion of otherwise qualified members based on an impermissible variable like rank; and

(3) Good faith efforts to be inclusive so courts-martial are open to all segments of the military community.

Slip op. at 4 (quoting Dowty, 60 M.J. at 171). Considering these factors, Judge Sparks finds that “there is no credible evidence indicating bad faith or improper motive on the part of the staff judge advocate or convening authority in redrawing the second panel, despite the fact that it was comprised of the same members,” slip op. at 5, and that:

In his letter to the trial court, the convening authority expressly stated that he considered the Article 25, UCMJ, criteria and personally selected the panel only on the basis of that criteria, and confirmed that he was cognizant of the roster of “roughly 8000 Marines and sailors” from which he could have drawn members. We are satisfied that–despite the composition of the second panel being identical to that of the first–any improprieties were cured in the steps taken by the convening authority the second time around. Panel 1c-13 was not tainted by systematic exclusion according to rank.

Slip op. at 6.

Judge Ryan only concurs in the result because she believes that Bartee waived this issue when he elected to be tried by a military judge alone:

Appellant voluntarily chose a military judge-alone trial, for undisclosed reasons, and thus waived his right to complain about the composition of a panel that was of no further relevance to his court-martial.

Concurring op. at 1.

Chief Judge Erdmann dissents, however, suggesting that the majority’s opinion provides a means to bypass the Article 25 criteria:

It is not difficult to envision that when a panel is held to be solicited in violation of Article 25, a convening authority need only be provided with an alpha list of his command, state that he knew he could select anyone in his command, and then reinstate the improperly convened panel with impunity.

Diss. op at 9.

Chief Judge Erdmann also disagrees with Judge Sparks’ application of the Dowty factors:

As to the first factor, the record reveals that the SJA’s primary motive was to improperly start the (top-down) process with a list of senior panel members, such that only if he could not find satisfactory senior members, he would work his way down through the ranks. The second factor needs little discussion as both lists were the admitted products of a system that excluded every member of the command under O-4 and E-8. As to the third factor, intentionally excluding a majority of potential panel members from consideration on the sole basis of rank is the antithesis of good faith efforts to be inclusive.

Diss. op. at 8. He concludes:

When the convening authority selected the same improperly convened members to the second panel, the taint of the initial panel remained, thus depriving Bartee of both a fair panel and the appearance of a fair panel.

Diss. op. at 10.

Case Links:
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
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

9 Responses to “Opinion Analysis: No systemic exclusion of members on the basis of rank in United States v. Bartee, No. 16-0391/MC”

  1. Handle of Rum says:

    Wait…what?  The same panel?  Huh?  What am I missing here?  Is CAAF trying to get itself displaced?

  2. Bionic Barry Dylan says:

    I wonder if SCOTUS might be interested in picking this one up.

  3. Charlie Gittins says:

    Once the CA sent a letter to the MJ, that made him a witness.  DC should have asked to have CA produced for cross-examination and test the CA’s personal knowledge of the members.  I have done that twice I think and it was a shit show for the CA because he really had no idea how any of the members fit the statutory criteria, other than by rank.   

  4. k fischer says:

    Charlie,
     
    All of what you said.  Plus, apparently the review of over 8,000 names with all ranks in a full roster was able to take place overnight.  Oh, and don’t forget the fact that the SJA submitted an amended order with the same names for the CA’s signature at the same time the CA was given the 8,000 names.  In addition to asking personal questions about the members he personally knew, I would have asked him about his schedule to figure out exactly how much time he spent reading over the 8,000 names and actually thoughtfully considered them and excluded them.  Because in reality, we all know what happened. 
     
    The SJA got the full roster, added the word “Amended” to GCM Convening Order #1, met with him for maybe 5 minutes, gave him the two documents and he signed it.

  5. k fischer says:

    Correction, it appears that the amended order had the same names, but the CA was given a new selection sheet where the CA selected the same members, which made up the amended order. 

  6. stewie says:

    The problem here is that the ordinary way of doing this is giving the CG the alpha roster along with the BDE nominations at the start.  Then he picks who he picks and you go from there.  Now there is obviously an argument to be made that if he picks only senior folks he’s stacking the panel.
     
    But you make that argument even easier when you don’t give the alpha roster to start and you then pick the same folks again.
     
    I mean there wasn’t one other Major or LTC he could have picked that was just as “tough?”  Not one? For the sake of appearance if nothing else?

  7. k fischer says:

    Stewie,
     
    Essentially, the majority has allowed CA’s to stack Courts-martial with senior members. All they have to do is start with the senior ranking people on a full alpha roster that they “know personally” and when they run out of slots at the E8/O5 level or above, they are good to go.
     
    I, too, would have advised the CA to change the order a little by at least a couple of members for appearance sake, but I kind of respect the SJA and CA for sticking to their guns and getting their technique blessed off on by CAAF.  At least they were honest.

  8. Brian Bouffard says:

    “Honest.”  Right.

  9. k fischer says:

    “I started out with the highest ranking people I knew first, and when the slots filled up, I didn’t have to go to anyone below the rank of O5 or E8.”  I don’t see any dishonesty in that statement, and CAAF found that no rule prevents that technique in panel selection and affirmed.
     
    Do I agree that is proper?  Of course not.  But, at least he didn’t say anything like “I looked at all the members and thoughtfully and painstakingly considered each and every one of their qualifications, then selected the same exact panel because I felt they were best qualified.”  I would call hella bs on that, as the kids say nowadays.  I blame CAAF for not falling bs.  But, at least the CA fought the issue and it was affirmed.  Can’t villainize the executive when the judiciary blesses the action.

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