The Court-Martial Panel Selection Process. A Critical Analysis

• Author: Major Stephen A. Lamb
• Pages: 03

tIlt is proper that you should understand what I deem the essential principles of our government, and consequently those which aught tc shape its administration.. . . Equal and exact justice to all men . . . and trial by junes impartially selected-those principles form the bright constellation which has gone before UB, and guided our steps through an age of revolution and reformation.. . . They should be the creed of our political faith . . . the touchstone by which to try the services of those we trust; and should we wander from them in moments of error or alarm, let UB hasten to retrace our steps and regain the road which alone leads to peace, liberty, and safety.'

I. Introduction

Thia statement, taken from Jefferson's first inaugural

address, highlights the importance of trial by jury to the American system of government. The civilian system of cnminal justice has been very protective of an individual's right to a jury tnal. Pnor to and since Jefferson's first inaugural address, the Constitution, the Bill of Rights, case law, and federal statutes have insisted that juries be drawn fairly and impartially from a cross-section of society, and not be the result of the deliberate inclusion or exclusion of particdar individuals or classes.2

The military system of cnminal justice has not been so protective. Although many of the constitutional values espoused

*Major. Judge Advocate General's Carps. Presently assigned 10 theAdrmnistrative Lax Dm~ibn. OlXce of The Judge Advmate General, U S Army B A , 1980, Claremant Men'a College; J.D., 1987, Univeraity of Southern Callforma, LL.M, 1992, The Judge Advocate Generas School Prmoua aasignmenti vlcluda Ssniar Defense Caunael, 82d Axborne Dimion, Fort Bragg, North Csrohna, 1989-1991; Chief, Operstmnal Law. lat S p e d Operationa Command ISOCOM(A)). Fort Bragg. North Carolina, 1987.1989 Member of the Bar of the State of Calliomia Thin article 1s h s d upon a mtten them didaertation that the author mhmitted to satisfy, 1n part, the Master of Lavadsgree reqmrements of the 40th Judge Advoeate Omcer Graduate Courae.

'Thomas Jdsnon, Frrsl hwgurd Address. Mar. 4, 1801. mprinld m 3

THe WRlTlNOS OF THO- JEPPE~oN. Olpicu~

P*ea;~s 321-22 (Aihsrt E. Bergh

sd 1907)l S e ~ mnfm part N A

by the civilian system of justice are present m the military, they are tempered by the premise that the Suth Amendment nght to jury trial is not applicable to the military.3 Certainly the eourt-martial panel, the military's corollary to a jury, 1s vastly different from a civilian jury in bath substance and structure. Referred to as "the major difference between mllitary and civilian practice,"' the court-martial panel and the method for its selection are frequent sources of eriticism.s

The Uniform Code of Military Justices KJCMJ or Code) employs a method for selecting court-martial panel members which differs greatly from the method used by the federal courts for selecting juror8.7 Although the UCMJ recognizes, through case law, the right of every accused service member to a fair and impartial jury, it does not accede to the majority of nghts conferred by and inferred through the Sixth Amendment.8

This article assesses the current method for court-martial panel member selection. The article begins by eaplonng the historical background to the JUT trial and, concomitantly, jury selection. The employment of the jury as a means of determining culpability and the methods for selecting the jury will be examred from the Greeo-Roman jury System to the current federal jury system. The histoncal background of the court-martial panel also will be reviewed, from its early origins and inception in this country under the Articlea of War to its present format under the Code.

The present method of court-martial panel member selection then will be examined in relation to the present federal model and the American Bar Association Standards for Cnmmal Justice.9 The article then w11 discuss the constitutional eonsiderations and judicial reaction to the present system of court-martial panel member selection. Finally, the article will review numeroue problems with the present system and propose a revision of the UCMJ.

aSsoo infro parta NA-B.*Joseph W. Bibhop, Jr., Jusmcr: UNDERhRe 27 11974)&See, ea., PhyUia W Jordan. Nmy Justtee. A ronfiret ofmtwesti, Ya. Pilot. Sepf 22. 1991, at AI, A8 ("Commanding officers can decide who may ait on the mditary IYIY. The IYIOIB and mtnsaaes me inrarisbly under his command.

'See 28 USC. 00 1861-1818

11988) 'See mfra part Iv B ' S T ~ U L D S

POB CR~M~NU JUSTICE.

Standard 15 (A B.A. 2d ed , 1986

Supp ) cmal by Jury) [heramsffer ABA S~umurosl

issai COURT MXRTIAL PANEL SELECTION 105

11. Historical Backpound to the Right to a Jury Rial

The enact origin of the jury trial 88 a system for admimstering justice is uncertain. The earliest recorded examples of jury trial. however, bear little resemblance to the current federal model. The concept of a fair and impartial jury composed of a cross-section of society actually has been established mthin the last few centuries. The purpose for examining the historical foundation of the jury IS to allow a valid comparison between past practice, the cment federal model, and the present system for court-martial panel member selection

1. The Grew-Roman Tradition

   1. The Greeks.-The first jury trial was recorded over 3000 years ago by Aeschylus in his play Eumnides.lo This jury consisted of twelve citizens of Athens who voted six for conviction and six for acquittal in the matricide prosecution of Orestes." Pallas Athena, as judge, cast the deciding vote far aequittal.12

   Euminides is significant in several respects. First, it reflects that early juries were not composed of a cross-section of society. The requirements for citizenship in Athens were quite rigarous.18Only property owners who were capable of serving the army as either a cavalryman or a hoplite-that is, a heavily armed t r o o p qualified as citizens." Second, the trial of Orestes reveals that early jury trials were not encumbered by the principle of unanimity of verdict as a requirement. Finally, it places the judge, Pallas Athena, as the tie-breaker and a voting member.

   By the suth century B.C., Solon had arranged the jury into a standing body of fifty-one citizens of the highest class of Athens.15 Known as the Areopagus, this tribunal heard ca8es and decided outcomes by majority vote.16 No set number of jurors were required for any given case, although the number of jurors rme with the relative importance of the ca8e.11

   More importantly, Salon began to open up the ehobility for jury duty before the general assembly to all Athenian citmns.18 The general assembly was the appellate body to which all appeals from the decision of the Areopagus were 8ent.18 Again, the general assembly, which ranged in size from 200 to 1500 members, decided by majority vote.20

   Toward the latter part of his administration, Solon reconstituted the Areopagus into the Heiioea, a body of 6000 jurors drawn from all classes of citizens by lot.21 The Heliaea, in turn, wae composed of ten 500-man jury panels, or Dykosteries, and a one.hundred-man reserve pool of jurors 22 The decision of a Dykast was by majonty vote, and was not subject to appeal to the general assembly.23

   By the time of the Helioea, significant efforts were made to make the Dykast more representative of the population Although citizenship was still a requirement, all classes of citizens were ellable and were drawn by lot. This represented a CO~SC~OUS

   intent to ensure that partisanship did not play any part in JUT

   membership. Additionally, the judge was replaced by a magmrate who did not vote or decide issues of law.2'

   2. The Romans.-The migins of the Roman jury system can be traced to roughly 450 to 451 B.C.25 During this period, the Deeemviirs returned from Athens, where they had been Bent to investigate the laws of Solan.26 The Roman jury, or Judex, was similar to the Greek Dykast in that its membership was limited stnctly to Roman citizens of the highest social order.27 Originally, only senator8 were eligible to serve on a Judex.28 During the consulship of Gaius Gracchus. membership briefly was extended to the equeatnan class, which consisted of merchants and landowners. Lueius Cornelius Sub, however, returned it to the sole pravlnce of the senatonal class less than forty yeare later.23

   Unlike the Dykosteries, the Roman Judices were supemsed by a Praetor, or judge, who ruled on issues of law and instrvcted the jury.30 Like the Dykast, the Judex determined its verdict on the basis of a majonty vote.81 To preyent undue influence from other jury members, the Judex employed secret balloting.8' This was accomplished by placing each member's vote in an m, to be counted by the Proetor.38

   The Judex was chosen by the Comitia, the general assembly of the Senate, for a period of one year.34 The Judex numbered eighty-one members.35 Both prosecutions6 and defense were accorded fifteen challenges each, leaving a far smaller jury than the Dykmt.37 Although each member of the jury was sworn to perform his dutiea in a fair and impartial manner,38 bribery intimidation and even an occasional murder of a jury member were not uncommon.~9

2. The British Tradition

   Papular theory is that the o r i p of the British jury system was introduced to the island by the Romans during the consulehip of Claudius, between 41 and 50 A.D.40 There is no compelling evidence of a jury system similar to the Greco-Roman system employed an the British Isles until after the Norman Conquest in 1066.41 Before this time, trial by ordeal, compurgation, and combat were the preferred methods for determining criminal culpability.'*

   30Moa~,supra note 10. st 3

   a l D u ~ ~ , supra note 28. at 403

   aald."Id34Moa~~.supra note 10, at 3, MOSCXZISYER, supra note 27, at 12."Moons. svpm note 10, ai 3."The Ramsns did not employ public pmseeutors, but instead allowed prwate citisena to pmecute each other See D...