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

AuthorJames T. Hill
PositionJudge Advocate, U.S. Army
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).
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
(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.
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
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. INTL L. 2 (2009–2010), http://www. (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 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.”).

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