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Panel member composition
United States v. Upshaw, 49 M.J. 111 (C.A.A.F. 1998). The issue is the convening authorities intent. If the motive for choosing a certain panel composition (even if mistaken) is benign, then systematic inclusion or exclusion of certain members may not be improper. In this case, the exclusion of some members was just a mistake, so no UCI. See also United States v. McKinney, 61 M.J.767, (A.F.Ct. Crim. App. 2005).
United States v. White, 48 M.J. 251 (C.A.A.F. 1998). Convening authority’s memo directing subordinate commands to nominate “best and brightest staff officers,” and that “I regard all my commanders and their deputies as available to serve as members” did not constitute court packing.
United States v. McClain, 22 M.J. 124 (C.M.A. 1986). The staff judge advocate excluded junior members because he believed that they were more likely to adjudge light sentences. This belief came from discussion with past panel members, and the convening authority considered recent, unusually light sentences at the time that he made his selections. The court reversed the sentence (the trial was a guilty plea before a panel).
United States v. Redman, 33 M.J. 679 (A.C.M.R. 1991). After a series of results that they disagreed with, the SJA and trial counsel decided to try to exclude certain members from the panel through the use of peremptory challenges. When the military judge denied these challenges, the SJA decided to shuffle the panel. After an investigation, the higher level commander withdrew the original convening authority’s power to convene courts. While the initial convening authority’s actions were UCI, the accused was tried by a new panel that was not tainted by the UCI so no prejudice.
United States v. Brocks, 55 M.J. 614 (A.F.Ct. Crim App. 2001). Base legal office intentionally excluded all officers from the Medical Group from the list of court member nominees sent to the convening authority. The SJA and chief of justice based this action on fact that all four alleged conspirators to distribute cocaine and many witnesses came from the Medical Group. Decision to exclude came from desire to avoid conflicts and unnecessary challenges for cause. The exclusion of the Group nominees did not constitute UCI. Motive of SJA and staff was to protect the fairness of the court-martial, not to improperly influence it.