Panel/jury selection is often a hot topic in military defense circles. As defense attorneys, we are entitled to unlimited challenges for cause of potential members. We get one peremptory challenge that we can use for any reason.
We have written about jury selection before. Military Jury Selection
The Convening Authority (the general) gets to pick the pool of potential panel members. In effect, the general and government lawyers get unlimited challenges. There are number of ways in which the Convening Authority can abuse the system.
-They can stack the panel with all senior members that are presumptively more likely to vote for guilt to support the Convening Authority;
-They can systematically exclude potential members of lower rank;
-They can stack the panel with members that all work together within the same office or section and are presumed to be more likely to vote together;
-They can stack the panel with officers that the Convening Authority personally knows;
-They can stack the panel with members that the prosecutor knows or advises.
United States v. Lance Corporal Bartee
A recent case in the Court of Appeals for the Armed Forces reminds us of the potential for abuse in the system. United States v Bartee, is a Marine Corps case decided on 15 March 2017. The Court ruled that the Convening Authority did not systematically pack the panel with panel members above the rank of master sergeant and major.
The facts are interesting though. The trial judge did find that the jury was improperly packed with senior members of the command. The Staff Judge Advocate and Convening Authority then went back and created a new jury pool using the same names from before.
Article 25, UCMJ requires a Convening Authority to select members based on experience and temperament to serve as a panel member. Rank is not a criteria. Lance Corporal Bartee objected to having all members above the rank of E-8 and O-4. Bartee objected and the judge agreed that members below a certain rank were systematically excluded from the pool of potential members.
After the judge ruled, the Staff Judge Advocate provided the general with a new list of potential members. It was the same list the judge ruled systematically excluded Marines based on rank. The SJA also gave him the full roster of 8,000 Marines in the command and told the general anyone could be susbstituted. The general did not substitute any panel members. The General added a letter stating that he personally new all of the members and felt they were qualified to serve on the case.
LCpl Bartee renewed his objection. The judge overruled the objection this time, finding that the general's letter cured any concerns under Article 25, UCMJ. That ruling prompted Bartee to change forum and elect a military judge alone trial. That was a bold call.
We won't Monday Morning quarterback the forum change. But, the military judge found him guilty of larceny, false official statement, and other charges. Bartee was accused of a conspiracy to steal credit cards to purchase gift cards at the post exchange. We've written about conspiracy defense in the past. We've also been involved in similar cases.
The judge sentenced Bartee to 20 months confinement and a dishonorable discharge.
United States v. Dowty and Case Law
In Bartee, the appellate courts agreed with the trial judge that Article 25 was not violated. The classic case is United States v. Dowty, 60 M.J. 163, 171 (C.A.A.F. 2004). Dowty looks at whether there was:
(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.
In the Greene the court said, "We start by recognizing that an accused has an absolute right to trial before a properly constituted court with members.” United States v. Greene, 20 U.S.C.M.A. 232, 239 (C.M.A. 1970).
Article 25, Uniform Code of Military Justice and Rule for Courts-Martial 912
The convening authority has the responsibility to properly select court members. Art. 25(d)(2), UCMJ, 10 USC §825(d)(2). “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.” R.C.M. 912(b)(1). However, the UCMJ prohibits the convening authority from attempting “to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, In reaching the findings or sentence in any case.” Art. 37(a), UCMJ, 10 USC § 837(a).
Case law makes clear that the intent or purpose of the convening authority in executing this procedure is an essential factor in determining compliance with Article 25. In courts-martial, an accused is not entitled to a panel that represents a cross-section of the eligible military population. However, deliberate and systematic exclusion of lower grades and ranks from court-martial panels is not permissible. United States v. Bertie, 50 M.J. 489, 492 (C.M.A. 1998). Moreover, a convening authority may not, in an individual case, purposefully stack a panel with members of senior grades or ranks to achieve a desired result. Id. A statistical showing may support an argument that the make-up of a particular panel was intended to produce a desired result.
Burden of Proof and Standards in Showing the Panel is Stacked
A party is entitled to present evidence to the court through an offer of proof, including any
written materials considered by the convening authority in selecting the members, which,
if true, would constitute improper selection of the members. R.C.M. 912(b)(2). If the
military judge determines that the members have been selected improperly, the military
judge shall stay any proceedings requiring the presence of members until members are
properly selected. Id.
The defense shoulders the burden of establishing the improper exclusion of
qualified personnel from the selection process. United States v. Kirkland, 53 M.J. 22, 24
(C.A.A.F. 2000) (citing to United States v. Roland, 50 M.J. 66, 69 (1999)). Once the
defense establishes such exclusion, the Government must show by competent evidence that no impropriety occurred when selecting appellant's court-martial members. Kirkland, 53 M.J. at 24.
Military courts have recognized that exclusion of persons below certain ranks
from consideration for being panel members by the convening authority is improper.
United States v. McClain, 22 M.J. 124 (C.M.A. 1986). In McLain, the appellant
challenged his rape conviction on the grounds that the convening authority had
improperly selected the member panel at his court martial. Id. at 124-125. The convening
authority, based on suggestions from his Staff Judge Advocate, selected enlisted panel
members from a list only containing soldiers of the E-7, E-8, and E-9 ranks. Id. at 125.
The court ruled that “the appointment to the court-martial only of persons in the upper
three grades was not proper.” Id. at 130. The court further ruled that the convening
authority had acted inconsistently with the “spirit of impartiality” embodied in Article 25 and Article 37 of the UCMJ by excluding soldiers E-6 and below from consideration for
court martial detail. Id. at 132.
The court stated:
"Discrimination in the selection of court members on the basis of improper criteria
threatens the integrity of the military justice system and violates the Uniform
Code. Except for the statutory preference for exclusion of persons in a rank lower
than the accused, all ranks are eligible to serve on a court-martial. When rank is
used as a device for deliberate and systematic exclusion of qualified persons, it
becomes an irrelevant and impermissible basis for selection. Id. at 129-130
(quoting United States v. Daigle, 1 M.J. 139, 140-141 (C.M.A. 1975))."
Military courts have also ruled that advisory nominations provided to a convening
authority may not improperly exclude service members based on rank. Roland, 50 M.J. at
69. In Roland, the court stated that presenting nominations to a convening authority is a
reasonable means of assisting the convening authority, provided it does not improperly
exclude eligible service members. Id. (citing to United States v. Kemp, 22 U.S.C.M.A.
152 (1973)). The court ruled that the, “nomination process may not systematically
exclude or include a certain category of service members. When the request for
nominations does improperly include or exclude certain members, this Court will ensure that those actions do not taint the selection by the convening authority.” Roland, 50 M.J. at 69. “Blanket exclusion of qualified officers or enlisted members in the lower grades is at odds with congressional intent and cannot be sustained.” Id. (quoting United States v. Nixon, 33 M.J. 433, 434 (C.M.A. 1991)).
Similarly, in Kirkland, the court set aside a service member’s sentence because
panel member nomination documents appeared to exclude service members from certain ranks. Kirkland, 53 M.J. at 24-25. In that case, a base legal office sent out a quarterly
letter, signed by the Base Commander, to the numerous unit commanders at the
installation. Id. at 23. The letter included a chart-form for the commanders to use to nominate Non-commissioned officers (“NCOs”) for court martial panels. Id. The chart
had columns for nominating E-7, E-8, and E-9s, but no areas for nominating E-6s or
below. Id. Subsequently, no soldiers E-6 or below were nominated. Id. at 25. The court
found that while the commanders knew that they had the ability to nominate soldiers
from any rank, it was likely that soldiers under E-7 would not be nominated due to the
improper structure of the form. Id. at 24. As a result, the selection process was improper
because it excluded certain groups of soldiers from consideration solely based on their
rank. Id. at 25. The court ruled that the military judge erred by denying the defense
request to seat a new panel. Id. The court further ruled that, “where an unresolved
appearance that potentially qualified court members below the grade of E-7 were
excluded, reversal of the sentence is appropriate to uphold the essential fairness and
integrity of the military justice system." Id. (quoting McClain, 22 M.J. at 133).
Challenges in Showing and Improper Motive that the Panel was Stacked
The first criteria under Dowty to show an improper motive for stacking the panel is tricky. As a defense lawyer, it would be almost impossible to get a general to admit an improper motive. You don't become a general without knowing what to say. In this case, there was evidence that the SJA attempted a top-down process looking for members from high rank to low rank until enough were selected.
A Caution Against Waiving the Issue
Other judges on the Bartee Court found that Bartee waived the issue when he chose a judge alone trial. It's a fair point. Forum selection is often an agonizing decision. It is certainly interesting the defense counsel in Bartee chose to go judge alone rather than question the prospective panel members.
The problem with the Bartee case, as the dissenting opinion points out, is that we've created a precedent where commands can stack a jury. All they have to do is provide a list of everyone's name in the unit and a letter.
Other Ways Panel Selection can be Manipulated by the Convening Authority
Unfortunately, stacking a panel/jury with senior members is not the only way a pool can be manipulated. I'm not picking on 82d Airborne, because I've won three cases in a row with full acquittals on over 40 charges. But, years ago that command was in the habit of loading up panels with brigade commanders and their staff officers. You would regularly have a senior member who was a brigade commander, maybe two or three of his battalion commanders, his sergeant major, and a few first sergeants all on the jury. And, of course, they knew each other. The assumption was that they would form a voting block. I don't see that problem at Bragg anymore, but it's another way juries can be manipulated in the military.
Another problem that can arise is when the prosecutor is the legal advisor to members of the panel/jury. It's as though the prosecutor has clients on the panel. Of course, it's an unfair advantage.
The courts, however have reasoned that the military community is small. Routine professional relationships are not per se disqualifying. The question is whether or not a court member is free from actual or implied bias. United States v. Bannwarth, 36 M.J. 265 (C.M.A. 1993); United States v. Porter, 17 M.J. 377 (C.M.A. 1984); United States v. Warden, 51 M.J. 78 (1999); United States v. Ai, 49 M.J. 1 (1998); United States v. Velez, 48 M.J. 220 (1998).
Using Challenges for Cause to Exclude Panel Members
A military judge's ruling on a challenge for cause is reviewed for an abuse of discretion. United States v. Armstrong, 54 M.J. 51, 53 (C.A.A.F. 2000). Military judges are afforded a high degree of deference on rulings involving actual bias. See Wiesen, 56 M.J. at 174.
By contrast, issues of implied bias are reviewed under a standard less deferential than abuse of discretion but more deferential than de novo. United States v. Strand, 59 M.J. 455 (C.A.A.F. 2004). Implied bias is reviewed under an objective standard, viewed through the eyes of the public, United States v. Napoleon, 46 M.J. 279, 283 (C.A.A.F. 1997), and it is intended to address the perception or appearance of fairness of the military justice system. Wiesen, 56 M.J. at 174. Actual bias, on the other hand, tests the expressed views of members.
In Richardson, four panel members were identified as having a professional relationship with the trial counsel. United States v. Richardson, 61 M.J. 113 (C.A.A.F. 2005). In response to questioning by the military judge, each member advised that their relationship with the trial counsel would not affect their ability to equally evaluate each side of the case. The military judge denied individual voir dire for three of the four members. The defense challenged for cause all four members for both actual and implied bias. The military judge granted only one of the challenges.
The Court of Appeals for the Armed Forces expressed concern that “whatever the qualitative nature of trial counsel’s professional relationships with these members, we do know that much of the advice rendered was in the area of criminal law.” Id. The Court was sensitive to the “possibility that trial counsel may have already established a rapport with three of the six members on criminal matters or sentencing issues...” Id.
The Court further stated that the “military judge had a responsibility to further examine the nature of the relationships in the context of implied bias review...” Id. The Court concluded that “in this case the appearance of a panel biased in favor of the trial counsel was heightened...” In that case, the Court declined to adopt a per se ground for challenge, but emphasized the importance of thorough voir dire. In that case, C.A.A.F. was concerned that trial counsel had “already established a rapport with three of the six members on criminal matters or sentencing issues...”
Using Voir Dire to Win the Case
I still subscribe to the belief that most members of the military are honest and want to do the right thing. They may have command biases, but those biases can be overcome. In most cases, the number of members on the panel/jury will likely be between 6-8 members. That means that to win the case (2/3 vote to convict) defense counsel will need about 3 votes for not guilty.
The opportunity to question (voir dire) potential members is extremely valuable. During jury selection we are searching for at least 3 votes. In the military, our ability to question panel members can be limited. So we have to use the few questions we have to our benefit.
Early in the case, we want to identify a theme of the case. A theme is merely a critical element of a story. It include any number of ideas:
-The victim had a motive to lie;
-Law enforcement did not fully investigate the case;
-Somebody else committed the offense.
These are just a few examples. In voir dire, we want to ask questions that give us insights into how potential jurors feel about the theme. For instance, in a sexual assault case where the accused is wrongfully charged, we want to explore whether panel members have ever been wrongfully accused. We'll want to ask members about their feelings towards particular issues important to the case. Examples in a sexual assault case might include questions like:
-Do any members know of an anyone - including themselves - that has been wrongfully accused of misconduct?
-Does anyone believe that because a case is investigated, the accused must be guilty?
-Have any members served as a SAPR?
-Have any members provided counseling services to victims? Medical services? Victim advocate?
-Do any members have any experience investigating sexual assault allegations?
-Does anyone have a family member or friend that has been a victim?
-Does anyone believe that if someone has even one drink of alcohol, they cannot consent to sexual activity?
-Do any members believe in not drinking alcohol?
-Do any members believe that the military has not done enough to address sexual assault issues?
-Do any members believe the military does not prosecute enough sexual assault cases?
-Do any members think the commander wants you to vote a particular way in this case?
Thes are just a few examples. We craft specific questions for each case. But, we want to use voir dire to help identify those - at least - 3 members that will vote for not guilty. With a properly prepared case and theme, handling a stacked jury is much more manageable.