Panel Selection Issues

Overview of panel selection issues:

1. militarydefenselawyers211In general. Virtually any member of the Armed Forces is eligible to serve on a court-martial panel. However, the CA may only select those members who, in the CA’s personal opinion, are “best qualified” in terms of criteria set out in Article 25, UCMJ   UCMJ (2015):

Age, Experience, Education, Training, Length of Service and Judicial Temperament.
United States v. Hodge, 26 M.J. 596 (A.C.M.R. 1988), aff’d, 29 M.J. 304 (C.M.A. 1989) (holding cross sectional representation of military community on court-martial panel is not required by the Constitution); see also United States v. Carter, 25 M.J. 471 (C.M.A. 1988) (holding no Sixth Amendment right that membership reflect a representative cross-section of the military population).

 

2. Selection process remains controversial.

a. The National Defense Authorization Act for FY 1999, § 552, required the
Secretary of Defense to develop a plan for random selection of members of
courts-martial as a potential replacement for the current selection process and
present the plan and views of the code committee to the Senate Committee on
Armed Services and the House Committee on National Security. The Joint
Service Committee unanimously concluded that, after considering alternatives,
the current practice of CA selection best applies the criteria in Article 25(d) in a
fair and efficient manner.

b. A Report of the Commission on the 50th Anniversary of the Uniform Code
of Military Justice, sponsored by the National Institute of Military Justice and
chaired by Senior Judge Walter T. Cox III of the United States Court of Appeals
for the Armed Forces, was forwarded to the Secretary of Defense and Members
of Congress on 5 September 2001. Observing “[t]here is no aspect of military
criminal procedures that diverges further from civilian practice, or creates a
greater impression of improper influence, than the antiquated process of panel
selection,” the Cox Commission recommended modifying the pretrial role of the
convening authority in both selecting court-martial members and making other
pretrial legal decisions that “best rest within the purview of a sitting military
judge.”

c. Guy Glazier, He Called for His Pipe, and He Called for His Bowl, and He
Called for His Members Three – Selection of Military Juries by the Sovereign:
Impediment to Military Justice,
157 Mil. L. Rev. 1 (1998). Cf. Major
Christopher Behan, Don’t Tug on Superman’s Cape: In Defense of Convening
Authority Selection and Appointment of Court-Martial Panel Members
, 176 Mil.
Rev. 190 (2003) (numerous articles collected and cited at footnote 25).