Achieving Transparency in the Military Panel Selection Process with the Preselection Method

• Author: James T. Hill
• Position: Judge Advocate, U.S. Army
• Pages: 117-149

2010] PANEL SELECTION TRANSPARENCY 117

ACHIEVING TRANSPARENCY IN THE MILITARY PANEL

SELECTION PROCESS WITH THE PRESELECTION METHOD

MAJOR JAMES T. HILL∗

I. Introduction

In 2004, Sergeant (SGT) Ryan Weemer and SGT Jose Luis Nazario

allegedly participated in the murder of four Iraqi detainees in Fallujah,

Iraq.1 The allegations did not surface until approximately two years

later, resulting in criminal charges against both of the Soldiers.2 The key

difference between the two cases was the status of SGT Nazario, who

was a civilian at the time the charges surfaced, placing his offense solely

within the jurisdiction of a United States district court.3 While fortuitous,

the chain of events in both criminal justice systems resulted in

protections for Mr. Nazario that were unavailable to SGT Weemer

during his court-martial. In particular, Mr. Nazario’s jury was selected

by random.4 By virtue of this selection process, Mr. Nazario had the

means to analyze the random procedures used to select his jury and

compare them with the standards proscribed by Federal statute to ensure

∗ Judge Advocate, U.S. Army. Presently assigned as Brigade Judge Advocate, 2d

Brigade, 1st Armored Division, Fort Bliss, Texas; LL.M., 2010, The Judge Advocate

General’s Legal Center & School, U.S. Army, Charlottesville, Virginia; J.D. 2000,

Western New England College School of Law, Springfield, Massachusetts; B.S., 1997,

Missouri Valley College, Marshall, Missouri. Previous assignments include Legal

Assistance Attorney, Headquarters, XVIII Airborne Corps and Fort Bragg, North

Carolina, 2001–2002; (Administrative Law Attorney, 2003; Administrative Law

Attorney, 2004); Operational Law Attorney, Headquarters, CJTF-180, Bagram,

Afghanistan, 2002; Trial Counsel, Headquarters, 101st Corp Support Group, Mosul,

Iraq, 2003–2004; Trial Counsel, Headquarters, Southern European Task Force, Vicenza,

Italy, 2004–2005 (Chief, Military Justice, 2006–2007); Command Judge Advocate, Task

Force Guardian, Bagram, Afghanistan, 2005–2006; Defense Counsel, Vilseck, Germany,

2007–2008 (Senior Defense Counsel, 2008–2009). Member of the bar of California.

This article was submitted in partial completion of the Master of Laws requirements of

the 58th Judge Advocate Officer Graduate Course.

1 Rick Rodgers, Marine’s Trial Begins in ‘04 Slaying in Iraq, SAN DIEGO UNION-TRIB.,

Apr. 1, 2009, at B1.

2 Id.

3 Id.

4 The Jury Selection and Service Act of 1968, 28 U.S.C. §§ 1821–1869 (2006), mandates

federal courts implement random jury selection processes. Id. § 1861. The law requires

the jury pool be established by an unspecified random process, id. § 1863(b)(2), but

specifically mandates the jury venire be selected by jury wheel or random lot process. Id.

§ 1863(b)(4).

118 MILITARY LAW REVIEW [Vol. 205

his jury was lawfully constituted.5 By contrast, in SGT Weemer’s

military case, a convening authority (CA)6 with the discretion to refer the

charges to trial, hand-selected his panel members after their nomination

by subordinate members of the same command.7 Because of the

peculiarities of the current military panel selection process, in contrast to

Mr. Nazario, SGT Weemer had no way of verifying his panel was

selected in compliance with the applicable statutory requirements.8

While the military justice system is a different animal than the civilian

one, the drafters of the 1950 Uniform Code of Military Justice (UCMJ)

were intent on creating a system more aligned with civilian notions of

justice than its predecessor.9 Thus, while the UCMJ retained command

control over the administration of the system,10 this authority came with

a heightened requirement to root out sources of undue influence to bring

the system in line with civilian practice. For example, the 1950 code

prohibited the practice of CAs admonishing court members for executing

their duties.11 In subsequent reforms, Congress created a military

judiciary and strengthened the independence of military judges to more

closely mirror their civilian counterparts.12 Yet, Congress has not

5 See discussion infra Part II.A.

6 With limited exception, all service branches utilize a panel selection method whereby

convening authorities’ (CA) subordinate staff or commanders nominate candidates for the

CA’s consideration in selecting a panel. See generally JOINT SERVICE COMMITTEE ON

MILITARY JUSTICE, REPORT ON THE METHODS OF SELECTION OF MEMBERS OF THE ARMED

FORCES TO SERVE ON COURT-MARTIAL apps. E–I (1999) [hereinafter JSC REPORT]

(summarizing the predominant panel selection procedures used in each of the military

services and the Coast Guard) (on file with Office of The Judge Advocate General, U.S.

Army).

7 Article 25(d)(2), Uniform Code of Military Justice (UCMJ), merely requires that the

CA detail members for panel duty whom are best qualified “by reason of age, education,

training, experience, length of service, and judicial temperament. UCMJ art. 25 (2008)

(codified at 10 U.S.C. § 825 (2006)). However, all military service branches use a panel

selection method whereby the CA hand-selects panel members to be detailed to a court-

martial panel. See generally JSC REPORT, supra note 6, apps. E–I.

8 See discussion infra Part II.A–B.

9 See Major Fansu Ku, From Law Member to Military Judge: The Continuing Evolution

of an Independent Judiciary in the Twenty-First Century, 199 MIL. L. REV. 49, 54 (2009).

10 See infra note 57 and accompanying text.

11 Uniform Code of Military Justice of 1950, art. 37, Pub. L. No. 81-506 (codified as

amended at 10 U.S.C. §§ 801–946) (“No authority . . . shall censure, reprimand, or

admonish such court of any member . . . with respect to the findings or sentence adjudged

by the court, or with respect to any other exercise of its or his functions in the conduct of

the proceeding. ”).

12 See generally Military Justice Act of 1968, Pub. L. No. 90-632, 82 Stat. 1335. The

1968 act created the military judge position to replace the law officer, and required that

2010] PANEL SELECTION TRANSPARENCY 119

enacted reform to address what has become the most glaring disparity

between the two systems—the lack of transparency in military panel

selection when compared to civilian juror selection.

This disparity engenders a sense of unfairness, especially given the

greater number of cases in which individuals accused of committing

crimes on active duty are prosecuted in federal court under the Military

Extraterritorial Jurisdiction Act.13 The more evident the disparity

becomes, the greater the attendant risk that Congress will perceive a need

to close the gap and simply adopt a process akin to the federal one,

which remains, “virtually inconceivable in a military setting.”14 If

implemented in a wholesale manner, the federal jury selection process

would be incompatible with military demographics—making panels

disproportionally junior15 and requiring judgment by members junior in

rank to an accused under a “purist” random scheme.16

military judges be assigned to organizations directly responsible to the Judge Advocate

General or his designee. See id. § 2(9) (amending Article 26, UCMJ). See also Military

Justice Act of 1983, Pub. L. No. 98-209, 97 Stat. 1393. The 1983 act sought to increase

the independence of the military judge by prohibiting CAs and members of their staff

from preparing “any report concerning the effectiveness, fitness, or efficiency of the

military judge . . . which relates to his performance as a military judge.” See Military

Justice Act of 1983 § 3(c)(1) (amending Article 26, UCMJ).

13 See First Lieutenant James E. Hartney, A Call for Change: The Military

Extraterritorial Jurisdiction Act, 13 GONZ. J. INT’L L. 2 (2009–2010), http://www.

gonzagajil.org/content/view/198/1/ (discussing two cases in which former service

members have been tried under the Military Extraterritorial Jurisdiction Act); see also

Press Release, Dep’t of Justice, Retired Military Official Pleads Guilty to Bribery and

Conspiracy Related to Defense Contracts in Afghanistan (July 1, 2009), available at

http://www.justice.gov/atr/public/press_ releases/2009/247621.htm (discussing four cases

in which service members have been charged in federal court with crimes committed

while on active duty).

14 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. L. REV.

190, 255 (2003).

15 JSC REPORT, supra note 6, at 22 (“A system using random nomination is likely to

select service members predominately from the enlisted grades of E-3 to E-6 and the

officer grades of O-3 and O-4.”).

16 See Behan, supra note 14, at 256 (“To be a purist [random selection scheme] . . . one

would have to be willing to discard . . . the tradition that one’s actions will never be

judged by someone junior in rank or experience . . . .”); see also UCMJ art. 25(d)(1)

(2008) (“When it can be avoided, no member of an armed force may be tried by a court-

martial any member of which is junior to him in rank or grade.”).