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.

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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.

Today I discovered (the hard way) that CAAF suffered some sort of technical difficulty with its audio recording system during Tuesday’s oral arguments in Ward and Nettles. Both files are of incredibly poor quality.

However, I was able to enhance them significantly, such that you can hear the arguments relatively well. Those enhanced recordings are available (in mp3 format) at the following links:

United States v. Ward, No. 15-0059/NA (CAAFlog case page): Oral argument audio.

United States v. Nettles, No. 14-0754/AF (CAAFlog case page): Oral argument audio.

CAAF will hear oral argument in the Navy case of United States v. Ward, No. 15-0059/NA (CAAFlog case page), on Tuesday, March 17, 2015, at 9 a.m. The case presents the following issue regarding the convening authority’s selection of members for Appellant’s court-martial:

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?

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 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 Appellant’s court-martial were outside the range of E-7 through O-5.

Congress established the criteria for member selection in Article 25 (10 U.S.C. § 825). Rank is not among those criteria. However, Appellant did not object to the composition of the panel at trial. Rather, after trial, when Appellant’s defense counsel (seemingly) first learned of the convening authority’s instruction, Appellant sought either a rehearing or a post-trial session to litigate the issue of improper exclusion of members based on rank. The convening authority denied both of Appellant’s requests.

On review at the Navy-Marine Corps CCA, Appellant again raised the issue of improper exclusion of members based on rank. Despite the convening authority’s refusal to permit post-trial litigation to develop a factual record, the CCA allowed (“with the consent of Appellant,” Gov’t Br. at 7) the Government to attach three post-trial affidavits discussing the convening authority’s selection of members, including an affidavit from the convening authority himself. The CCA then 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 (and the Government did not certify the CCA’s finding of error).

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