(dissenting):
145. I am not comfortable with the majority’s treatment of several of the assigned issues; I believe that a more penetrating analysis would be helpful in some instances and that the discussion’s focus is somewhat off the mark in others.
On three of the issues, however, I part company with the majority in two areas that relate to the bedrock for ensuring the fairness of a trial like this — a trial that ultimately may serve as the basis for executing this appellant: selection of and deliberations by court members. The first (Issue I — at 238 ¶ 15) raises the cancerous possibility that command influence inside the members’ deliberation room during their consideration of a sentence so skewed the legally required voting procedures that it undermined the fundamental fairness of those proceedings; two other issues raise the specter of the insidious possibility of racial (Issue XXXI) and gender (Issue XXXII), both at 283 ¶¶ 105-11, discrimination infecting the convening authority’s selection of the court-members who ultimately tried appellant.
The majority refuses to penetrate the protective curtain of the members’ deliberations and, so, fails even to analyze much less redress the prejudice from the first flaw. As to the process by which the members who ultimately tried appellant were selected, the majority omits to consider all the facts of record surrounding that process and, so, does not recognize either the precise nature or quality of appellant’s grievance.
146. As to each of these issues, therefore, I am compelled to dissent from the majority opinion. In addition, although my views of either of these matters would dispose of this appeal, I am pressed to pause and to offer substantially more comment than the majority does relating to two other issues of special importance in capital litigation: proportionality review (Issue XL — at 290 ¶¶ 118-19) and continuity of appellate counsel (Issue LXVI-II — at 298 ¶¶ 129-30).
I
Any possibility of arbitrary imposition of rank in the military justice system — regardless of intent or motivation — that undercuts procedures that are crafted and structured to protect substantial rights of an accused must be rooted out and, if uncovered, purged. *311The majority consciously refuses to recognize that possibility in this case and, therefore, has covered its ears to appellant’s complaint of it. I do not agree with the majority’s view of the circumstances.
Accordingly, I conclude that appellant may have been denied the protections of the sentencing mechanism established by the President in RCM 1004 and 1006, Manual for Courts-Martial, United States, 1984, as well as due process in imposition of his sentence to death and his Eighth Amendment right to a reliable determination of a death sentence. I would order a limited hearing to gather all of the available evidence on the question so, on that basis, the Court could determine with confidence whether appellant’s sentence was lawfully imposed.
A
147. “[T]he imposition of death by public authority is ... profoundly different from all other penalties____” Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973 (1978). The heightened concern in a capital case derives from the finality of the result and the risk that the proceedings are vulnerable to the influence of impermissible considerations. Because of this fundamental distinction between the death penalty and other punishments, “there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.” Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976).
“[T]he Eighth Amendment requires a different treatment of death-penalty cases.” United States v. Curtis, 32 MJ 252, 255 (CMA), cert. denied, 502 U.S. 952, 112 S.Ct. 406, 116 L.Ed.2d 354 (1991). Considerations of due process and the prohibition against cruel and unusual punishment require “fair procedure in the capital sentencing context.” Lankford v. Idaho, 500 U.S. 110, 125, 111 S.Ct. 1723, 1732, 114 L.Ed.2d 173 (1991). One of the special requirements of the capital sentencing context is that the sentencing scheme must “genuinely narrow the class of persons eligible for the death penalty.” Zant v. Stephens, 462 U.S. 862, 877, 103 S.Ct. 2733, 2742, 77 L.Ed.2d 235 (1983). Accord Blystone v. Pennsylvania, 494 U.S. 299, 308, 110 S.Ct. 1078, 1084, 108 L.Ed.2d 255 (1990)(fun-damental principle of death-penalty jurisprudence that “the State must establish rational criteria that narrow the decisionmaker’s judgment as to whether the circumstances of a particular defendant’s case meet” “a required threshold below which the death penalty cannot be imposed,” quoting McCleskey v. Kemp, 481 U.S. 279, 305, 107 S.Ct. 1756, 1774, 95 L.Ed.2d 262 (1987)). This narrowing process may be accomplished in the trial itself or in a sentencing scheme that relies on aggravating factors. Lowenfield v. Phelps, 484 U.S. 231, 244-46, 108 S.Ct. 546, 554-55, 98 L.Ed.2d 568 (1988); Proffitt v. Florida, 428 U.S. 242, 248-50, 96 S.Ct. 2960, 2965, 49 L.Ed.2d 913 (1976); Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976).
148. This Court first considered whether the sentencing scheme for capital cases in the military justice system passed constitutional muster in United States v. Matthews, 16 MJ 354 (1983). The Court concluded that, while the scheme did reflect many of the then-apparent constitutionally required safeguards, one important omission was a “require[ment] that the court members make specific findings as to individualized aggravating circumstances — findings which can, in turn, be reviewed factually and legally.” 16 MJ at 380. The Court suggested that either Congress or the President could lawfully remedy this defect. Id. at 380-81.
In response, the President promulgated a new death-penalty procedure by Executive Order No. 12, 460, 49 Fed.Reg. 3169, in January 1984. That procedure became RCM 1004, Manual, supra. United States v. Curtis, 32 MJ at 257. See also Art. 106a(b) and (c), Uniform Code of Military Justice, 10 USC § 906a(b) and (c) (procedures required by Congress for imposition of death penalty for espionage in violation of Article 106a(a)).
Constitutional challenge to those procedures first arose in United States v. Curtis, 32 MJ 252. In the Court’s opinion there, RCM 1004 was set out in full in order to *312plainly reveal the carefully interlocking structure of procedural safeguards that preserve a capital defendant’s Fifth and Eighth Amendment rights. 32 MJ at 257-60. Making particular reference to the requirement that court “members must unanimously find at least one of the” delineated “aggravating factors” and to the requirement that the members must unanimously “ ‘concur that any extenuating or mitigating circumstances are substantially outweighed by any aggravating circumstances,’ ” see RCM 1004(b)(4)(C), 32 MJ at 268, the Court concluded that RCM 1004 “not only complies with due process requirements but also probably goes further than most state statutes in providing safeguards for the accused.” 32 MJ at 269.
B
149. RCM 1004 (Change 2), together with RCM 1006, require the following orchestrated procedure of interrelated stepping stones toward a sentence of death:
• The accused must have been convicted of a death-authorized offense “by the concurrence of all the members of the court-martial present at the time the vote was taken.” RCM 1004(a)(2).
• Ordinarily prior to arraignment, trial counsel must “give the defense written notice of which aggravating factors” listed in RCM 1004(c) “the prosecution intends to prove” as a means of narrowing the field of death-eligible accused. RCM 1004(b)(1).
• During presentence procedure, “[t]rial counsel may present evidence ... tending to establish one or more of the aggravating factors,” and “[t]he accused shall be given broad latitude to present evidence in extenuation and mitigation.” RCM 1004(b)(2) and (3).
• “Death may not be adjudged unless” all of the following are found by the court members based on evidence introduced either on the merits or during presentencing:
••“[A]t least one of the aggravating factors” listed elsewhere in the rule existed;
•• “The required notice was given to the defense by trial counsel, and “all members concur in the finding with respect to” any given aggravating factor; and
•• “All members concur that any extenuating or mitigating circumstances are substantially outweighed by any aggravating circumstances____”
RCM 1004(b)(4) and (5).
• A vote on a proposed sentence that includes death may not occur until the members “vote by secret written ballot separately on each aggravating factor ... on which they have been instructed” and unless they unanimously agree beyond a reasonable doubt that a particular factor or factors exist in the ease. RCM 1004(b)(7) and (c). Only if this threshold requirement is met is an accused death-eligible (that is, liable to imposition of the death penalty), and only then can the members proceed to deliberate and to vote on proposed sentences under the procedure applicable to all courts-martial that is set out in RCM 1006. RCM 1004(b)(7).
150. •During those deliberations, “[s]uperiority in rank shall not be used in any manner to control the independence of members in the exercise of their judgment.” RCM 1006(a).
• During deliberations, “[a]ny member may propose a sentence. Each sentence shall be in writing and shall contain the complete sentence proposed. The junior member shall collect the proposed sentences and submit them to the president” of the court-martial. RCM 1006(e).
• Voting is by secret written ballot. RCM 1006(d)(2).
• Voting is on “each proposed sentence in its entirety beginning with the least severe and continuing, as necessary, with the next least severe, until a sentence is adopted by the” necessary concurrence — in death, unanimous. RCM 1006(d)(3)(A) and (4)(A).
• The junior member of the court-martial collects and counts the votes, and the president checks the count and informs everyone else of the result. RCM 1006(d)(3)(B).
(This is not a quotation.)
Thus, compliance with RCM 1004 and 1006 attains two fundamental goals: First, it nar*313rows the group of accused persons who can be death-eligible by requiring the members unanimously to find at least one specific aggravating factor and to find that the totality of aggravating circumstances substantially outweighs the extenuating and mitigating circumstances. Second, in consideration of what sentence should be adjudged, it implements procedures that maximize the unfettered and conscientious participation of each member in a manner that assures a moderating approach to the task and that assures that the weighty responsibilities inherent in this duty are not at all affected by differences in rank among the members.
C
151. Regrettably, the specter has been raised that this carefully designed structure of procedures broke down in this case — and critically, that it did so entirely because the superior-ranking member of the court unilaterally imposed his own short-cut toward a sentence rather than follow the clear path carefully mapped out for the court by the military judge.
As the majority opinion indicates, appellant has filed with this Court the post-trial affidavits of Colonel Ayler, who was the president of the court-martial, and Major Napoli and Captain Williams, who were two of the other members of the court-martial. I have attached all three affidavits as appendices to this opinion so that all may see exactly what these members say. See Appendices A, B, and C.
The majority opinion characterizes these affidavits as “ambiguous at best.” 41 MJ at 235 ¶ 10. I think they more accurately are ambiguous at least. All three purport to state the procedures that were followed during sentence deliberations and are in no way inconsistent with each other. Together, I believe that they, at minimum, suggest that the following occurred:
152. «The members did not vote at all during sentence deliberations on any of the aggravating factors relied upon by the prosecution to narrow the field of death-eligible aecuseds. See Lowenfield v. Phelps, 484 U.S. at 244 [108 S.Ct. at 554], Possibly, the president was content to skip that narrowing exercise and rely on the fact that they earlier had returned findings that reflected one or more such factors (i.e., multiple murder, see RCM 1004(c)(7)(J)). RCM 1004 nowhere expressly contemplates this procedural merger of findings and sentencing votes; and the notion that the sentencing stage of a proceeding involves a deliberative process of factual and moral overtones and dynamics that is entirely distinct from the consideration of guilt would not seem to support the validity of this self-indulgence. Cf. United States v. Shroeder, 27 MJ 87, 90-91 (CMA 1988), cert. denied, 489 U.S. 1012, 109 S.Ct. 1121, 103 L.Ed.2d 184 (1989). In any event, for whatever reason, this vote was not taken, as the military judge had directed them to do as part of the carefully interlocking procedural structure.
• There was no vote at all on whether the aggravating circumstances outweighed the extenuating and mitigating circumstances — at least, none of the three affidavits, which otherwise appear to fully set out the procedure that was followed, even mentions this critical step.
• Rather than the members formally writing proposed sentences in their entirety, the president had them proceed directly to a vote between the “two options” of life imprisonment and death. There is no mention of the remaining elements of the sentence at that point; and this method of choosing between the two statutorily authorized “options” theoretically begs the question whether any member would propose death under correct procedures.
• Rather than the junior member collecting and counting the ballots, the junior member instead merely passed the folded pieces of paper to the president, who himself unfolded and tallied them — another shortcut through the procedural cheeks in the rules. This first vote was 7 for death and 1 for life.
153. • Even if this first “vote” could somehow be construed under the rules as a written proposal of sentences to be consid*314ered, the members did not then proceed, as required, to vote on the lightest sentence “option” first — life. See United States v. Johnson, 18 USCMA 436, 40 CMR 148 (1969); United States v. Jackson, 34 MJ 1145, 1149 (ACMR 1992); see also United States v. Fisher, 21 MJ 327 (CMA 1986)(failure to instruct members to vote on the proposed sentences “beginning with the lightest”). Instead, they took a second vote between the “options” of life imprisonment and death, thereby making them equally available alternatives at that point in time. Where only one vote for life imprisonment is necessary to thwart a death sentence, the requirement for distinct votes — beginning with life, proceeding to death, then over again if the required concurrence is not mustered at any point — cannot reasonably be seen as a mere technicality. Again there is no mention about consideration of the other elements of the sentence.
• As before, contrary to the military judge’s instructions, the junior member merely collected and passed to the president the folded pieces of paper, who himself unfolded and counted them. He announced that, this time, the vote was all 8 for death, bad-conduct [sic] discharge, total forfeitures, and reduction to E-l.
(This is not a quotation.)
154. RCM 1004 and 1006 require a careful voting process: first, to determine if an accused is eligible for a death sentence (ie. commission of a capital offense, presence of one aggravating factor, and aggravating circumstances substantially outweigh extenuating and mitigating circumstances); and, second, to determine whether death is the appropriate sentence (after voting on and rejecting all lesser proposed sentences). These procedures are essential to ensure that the death penalty is not inflicted in an arbitrary and capricious manner.
As the earlier comparison graphically demonstrates, if the members actually trampled along the procedural shortcuts that are suggested by the affidavits, in the process they crushed the thoughtful and delicate balance in the procedural structure mandated by RCM 1004 and 1006. Moreover, if these shortcuts occurred, they occurred as a result of the unilateral imposition by the senior-ranking member of the court-martial of a procedure that differed markedly from the procedure that was plotted for the panel in the military judge’s painstaking instructions.
Assuredly, the senior-ranking member of the court-martial has the responsibility to preside in the fullest sense. I do not quarrel with the majority that “Colonel Aylor was the president of the court-martial and, as such, had certain administrative duties and discretion in the performance of those duties.” 41 MJ at 238 ¶ 15. See United States v. Accordino, 20 MJ 102, 105 (CMA 1985). It is not within his authority or discretion, however, to divine his own personally preferred procedural path toward a death sentence, in substantial disregard of the one that has been clearly prescribed by the President of the United States in the Manual for Courts-Martial and, in some instances, in substantial disregard as well of checkpoints along the way that are required by the Fifth and Eight Amendments.
155. Unlawful command influence? I think so. These affidavits seem to suggest much more than what the majority concludes was “no more than Colonel Aylor’s proper exercise of authority as president to preside over the deliberations.” 41 MJ at 238 ¶ 15. Instead, they seem to portray a scenario in which the senior-ranking member, solely by virtue of his rank, successfully imposed a procedure that was unlawful and that, in the process, destroyed the lawful procedural structure that would have substantially assured a fair and reliable sentence. By any definition, that scenario is unlawful command influence.1 Cf. United States v. Accordino, *315supra at 104 (“use of rank by a court member to pervert military justice”); United States v. Carr, 18 MJ 297, 302 (CMA 1984) (“unlawful command influence” exception to Mil.R.Evid. 606(b), Manual, supra, includes allegation that court-martial’s president used rank to pressure other members during deliberations).
The majority attempts to sidestep this command-influence issue by stating, “Appellant has not alleged that Colonel Aylor exercised unlawful command influence during the deliberations.” 41 MJ at 237 ¶ 14. Although appellant did not make this claim in the brief, appellate defense counsel at oral argument repeatedly raised and argued the command-influence issue. At the very outset of oral argument, counsel argued that the voting procedures were designed to prevent command influence and urged that the affidavits permit an inference of command influence. Again in rebuttal argument, appellate defense counsel explicitly asserted that the issue of command influence justified an evidentiary hearing. Accordingly, there can be no dispute that the command-influence issue is squarely before this Court.
Nothing reeks like the odor of unlawful command influence; these affidavits have a distinctly disconcerting aroma emanating from them. I cannot legally or morally join in affirming this sentence to death without further proceedings to assure myself, appellant, and the community as a whole that appellant’s substantial rights were not critically undermined by the unlawful exercise of the power of rank behind the closed doors of the members’ deliberations. See Mil.R.Evid. 606(b).
II
156. Through Issues XXXI and XXXII, 41 MJ at 283 ¶¶ 105-11, appellant pursues his trial assault on the court-martial panel-selection process that he complains resulted in African-Americans and women unlawfully being excluded initially and underrepresented ultimately on the panel that tried him. The majority opinion attempts to minimize the absence of both racial and sexual diversity in one officer panel that appellant objected to trying him. The majority relies on the post-objection attempts of the convening authority to provide for some diversity as sufficient damage control to moot this issue. I do not agree with the majority’s casting of this issue, and I do not agree, either, with its conclusion that appellant has not carried the appropriate burden to trigger further inquiry.
A
Appellant is an African-American male who faced charges of murder, attempted murder, and robbery. His murder victims were two white males, and the victim of his attempted murder also was a white male; all of his alleged robbery victims were white *316males and females; and one of the important prosecution witnesses was a married white woman with whom appellant was involved in a sexual affair at the time of his crimes and upon whom appellant in his defense attempted to place a good deal of the onus for his actions.
157. Understandably, then, the defense team in this capital case had heightened sensitivity to any possible injection of racial discrimination into the proceedings. Certainly, a principal focus of this sensitivity, as well as to a somewhat lesser extent to gender discrimination,2 related to the composition of the court-martial panel. In order to fully evaluate the legal issues inherent in appellant’s complaint, a rather extensive recitation is necessary relating to the evolution of the panel that finally tried appellant.
Court-Martial Convening Order Numbers 1 and k
The first panel of officers was selected under Court-Martial Convening Order (CMCO) # 1, dated January 20, 1989. The senior member of this panel was African-American, and the rest were Caucasian; none was a woman. Appellate Exhibit (App. Ex.) LII at 9.
In a memorandum to the convening authority of February 14, the staff judge advocate (SJA) pointed to the substantial local publicity surrounding the offenses’ .and the upcoming trial; “[i]n order to insure a completely fair and impartial court-martial panel,” he recommended that the convening authority “detail, for this case only, a panel composed of soldiers who have arrived at Fort Hood on or after 1 January 1989, or who are presently assigned to commands outside Fort Hood.”
158. The SJA attached to his memorandum a list of officers nominated by the various commands at Fort Hood and officers made available from Fort Sill. Of the 45 officers on the list, 41 were white and 4 were African-American; none was female. The SJA recommended that the convening authority “select 12 officers to serve as court members,” who “should be designated by placing numbers 1 thru 12 next to their names.” Additionally, he recommended that the convening authority “select 15 officers to serve on the above panel” as alternates in the event that “approved absences or challenges cause the number of members available to fall below prescribed limits.” These alternates, he suggested, “should be designated by placing numbers 13 thru 27 to signify the order in which they should serve on the court-martial panel.”
The member-selection list given to the convening authority contained each officer’s name, rank, social security number, unit, race, and sex, as well as a blank line on the left margin next to each nominee’s name for the convening authority to indicate his selections. Every one of the nominees next to which the convening authority placed numbers 1 through 12 was a white male. Of the 15 officers next to whom he placed numbers 13 through 27, two were African-American: Major Taylor was numbered 14, and Major Staples was numbered 17.
159. Implementing the SJA’s recommendation and the convening authority’s selections, the latter promulgated CMCO # 4 on February 14. Through this order, the convening authority withdrew appellant’s case from a racially mixed court-martial panel of all men (CMCO # 1) and referred it to an all-white, all-male panel of 12 officers. App. Ex. XLI at 18-20.
Court-Martial Convening Order Numbers 7 and 8
On February 21, at a session convened under Article 39(a), UCMJ, 10 USC § 839(a), defense counsel highlighted the fact that all 12 of the panel members were white males. In that light, he expressed concern that the *317only information on the selection sheets— other than innocuous data of names, ranks, social security numbers, and units — -was racial and gender identifiers. Based on the uniform composition of the panel and on the nearly uniform composition of the list of nominees from which the convening authority selected the panel — made further suspect by the pointed inclusion of the racial and gender identifiers on the selection sheets — counsel advised that the defense “would probably have a motion” relating to the lawfulness of the selection process, both as to “the people given to the General to select” and as to “the people selected by the General.”
At the same session, appellant requested enlisted members on his panel. Defense counsel made clear at the time that his client felt compelled to make such a request in the hope of getting a better cross-representation; 3 that the request was not the result of any real desire by appellant for enlisted members; and that the defense felt that the only way they could learn the race and gender of the enlisted members that the convening authority would appoint would be to request such members. He indicated, however, that appellant might well withdraw that request later and that, in any event, appellant was entitled to a lawfully selected officer panel, without regard to whether appellant did or did not want enlisted members.
160. The next day, on February 22, the convening authority provided 6 enlisted members. This action later was effected by CMCO # 7, published on March 24, in which the convening authority relieved 5 of the original white male members: COL Webb, LTC Hardie, MAJ Napoli, CPT Williams, and CW3 Hasenhauer — numbered 1, 4, 9,10, and 11 on the member-selection list. App. Ex. XLI at 18-20. In their stead, the convening authority detañed six enlisted members, three of whom were African-American males and one of whom was an African-American female (the other two were white males). The selection sheets used for this panel (App. Ex. XLVII at 3-14), like those in use for the panel detailed under CMCO # 4 (App. Ex. XLI at 18-20), contained racial and gender identifiers.
True to his promise of February 21, defense counsel submitted a written motion on March 13 that was captioned, “MOTION FOR APPROPRIATE RELIEF: CHALLENGE TO VALIDITY OF REFERRAL DUE TO ERRORS IN PANEL SELECTION PROCESS.” Therein, counsel claimed that “the process for selection of panel members in this case has resulted in a violation of the accused’s right to Due Process and Equal Protection under the Fifth Amendment.” App. Ex. XLI at 1. He relied principafiy on such cases as Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977); and United States v. Smith, 27 MJ 242 (CMA 1988). Counsel’s trial brief made clear that the “scope” of the requested
inquiry is broad. It should involve every aspect of the panel selection and referral process, to include both the persons selected for duty and the nominees not selected, the staffing of the action, the decisionmaking process of the convening authority, the population from which the selection was made, and the personal attitudes and motivations of the people involved in the selection process____
161. Counsel acknowledged in that brief that the defense had the burden to make a *318“prima facie ” showing of denial of equal protection “in order to shift the burden to the Government to disprove” that showing. Castaneda v. Partida, 430 U.S. at 495, 97 S.Ct. at 1280. Thereafter, at some length, the defense sought to make this prima facie case by showing: 1) that “the defendant is a member of a recognizable group singled out for different treatment,” citing Hernandez v. Texas, 347 U.S. 475, 478-79, 74 S.Ct. 667, 670-71, 98 L.Ed. 866 (1954); 2) that there is “underrepresentation of his group on the panel” by making statistical comparisons of the numbers of African-Americans and women on the panel with the numbers among the local military population; and 3) that “the underrepresentation may be due to unconstitutional activity.” App. Ex. XLI at 5.
After extensive argument on these points, counsel then urged that, the prima facie showing having been made, “[t]he Government has the burden of proof to ‘explain adequately the racial exclusion.’ Batson, 476 U.S. at 94 [106 S.Ct. at 1721].” Ultimately, counsel urged that the remedy requested was for the military judge to “strike down the referral of this case as violative of the accused’s right to Due Process and Equal Protection under the Fifth Amendment ... and return the case to the convening authority. The defense also requests the military judge strictly scrutinize all actions by the command with regard to this trial in light of the developments in this case.”
While discussing this motion at an Article 39(a) session, defense counsel reiterated that their earlier request for enlisted members had been conditional and with the express understanding that it might be withdrawn later. Counsel explained that the request was an effort to try to get “a more representative panel” than the “all-white, all-male panel” of officers detailed under CMCO # 4. When the military judge queried whether the convening authority had not done exactly what appellant wanted — that is, given him members of his race on the panel in the form of enlisted membership — the defense responded:
[W]e feel like we shouldn’t have to be made to make some kind of election, in order to try and get a panel that’s not in violation of the Equal Protection Act [sic] — it puts an unnecessary burden on the defense. We’d like to have the problem with the officer panel solved, before— instead of putting the burden on us, to cure the Government’s error, in this case. And, all we’re saying is that they — that we have established a prima facie case — that it’s up to them to rebut; they need to present evidence to rebut this prima facie case....
162. On March 23, the military judge denied appellant’s motion for a new officer panel. He explained his decision as follows:
In my view, there aren’t any factual issues to be resolved. There is no per se right to have minority representation on a court-martial panel. None of the officer court members listed on the convening order is black. Numerous black enlisted soldiers have been designated to sit. The accused, initially, as I understand, elected to be tried by a panel of officers and enlisted soldiers. Now, I’ve been told, however, that that’s not the case; that the accused wishes to be tried by officer-members only. Black officers have been designated as alternate court members. The pool of officers from which to choose was somewhat limited, in that the Convening Authority, in this case, wanted individuals arriving at Fort Hood after 1 January 1989, and officers nominated from Fort Sill, Oklahoma. This was done to allay defense concerns about pretrial publicity. Because of these self-imposed limitations, the number of black officers from which to choose shrank significantly. I agree with the trial counsel that, consequently, presenting demographic statistics for all of Fort Hood and the racial breakdown of officer/enlisted members becomes somewhat irrelevant. Other than raw statistics, the defense has not presented evidence or made offers of proof to cause me to conclude that blacks have been arbitrarily excluded from the officer-panel selection process, or that the Convening Authority was racially-biased in his selection process. The defense has conceded that, in the past, this Convening Authority has appointed senior and junior *319black officers to sit on panels. In reviewing the documents concerning the selection of enlisted soldiers, it is clear that the Convening Authority had a far greater pool of minority soldiers from which to choose. He chose several black enlisted soldiers to sit on this panel. Again, earlier in the trial, the accused indicated that he wished to be tried by officers and enlisted — that’s not now the case — but, the fact that several black NCOs were selected to sit, by the Convening Authority, is strong circumstantial evidence, in my view, that the selection of the officer panel was done without racial animus and without any sinister motives. If the Convening Authority was trying to manipulate the system, surely black NCOs or black enlisted soldiers would have also been excluded. The Convening Authority — or, the selection of the officer-panel members was done in accordance with law and regulation. The selection process violated none of the rights of the accused.
On March 23, appellant formally withdrew his request for enlisted members and asked for an all-officer panel. By memorandum dated March 24, the SJA recommended that the convening authority “appoint an additional 5 officers to the 7 previously selected to sit as court members in this ease [CMCO # 7].” He advised the convening authority that those 5 could be 1) the same 5 earlier relieved when appellant had “requested enlisted members”; 2) “[t]he next 5 alternate officer members previously selected”; or 3) “[a]ny other alternate officer member previously selected or any officer of your command who, in your opinion, meets the requirements of Article 25____” The SJA furnished the convening authority with member-selection sheets that contained all of the officers on the prior selection sheet including the seven who remained on the panel pursuant to CMCO #7.
163. The same day, the convening authority published CMCO #8 by which he relieved the six enlisted members and detailed five additional officers. Of these, three had been among the five officers relieved when appellant had requested enlisted members: MAJ Napoli, CPT Williams, and CW3 Hasenhauer. The other two who had been relieved — COL Webb and LTC Hardie — in the meantime had undertaken conflicting obligations that they were unable to reconcile on such “short notice.”
The two new faces were MAJ Staples, an African-American male who had been numbered 17 on the original selection sheet, and LTC Dobbs, a white male who had been numbered 16 on that sheet. There is no explanation why the convening authority skipped over the officers that earlier he had numbered 13, 14 (MAJ Taylor, an African-American male), or 15; this, notwithstanding the SJA’s advice in his memorandum accompanying the original selection sheet that the convening authority should number his selections for alternates “13 thru 27 to signify the order in which they should serve on the court-martial panel” if needed. (Emphasis added.)
Ultimately, then, the final panel selected (CMCO # 8) by the convening authority consisted of 11 white male officers and 1 African-American male officer; of the 5 alternates, 2 were African-American males, and none was a woman. App. Ex. LXVIII at 1-3. The single African-American detailed as a primary member was not challenged and did sit as one of the eight members who convicted and sentenced appellant to death.
B
Constitutional Character of Appellant’s Complaint
164. In the recent opinion of the Supreme Court in J.E.B. v. Alabama ex rel. T.B., - U.S. -, -, 114 S.Ct. 1419, 1421, 128 L.Ed.2d 89 (1994), Justice Blackmun began the Opinion of the Court as follows:
In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), this Court held that the Equal Protection Clause of the Fourteenth Amendment governs the exercise of peremptory challenges by a prosecutor in a criminal trial. The Court explained that although a defendant has “no right to a ‘petit jury composed in whole or in part of persons of his own race, ’ ” id. at 85,106 S.Ct., at 1717, quoting *320Strauder v. West Virginia, 100 U.S. 303, 305, 25 L.Ed. 664 (1880), the “defendant does have the right to be tried by a jury whose members are selected pursuant to nondiscriminatory criteria.” Id., 476 U.S. at 85-86, 106 S.Ct. at 1717. Since Batson, we have reaffirmed repeatedly our commitment to jury selection procedures that are fair and nondiscriminatory. We have recognized that whether the trial is criminal or civil, potential jurors, as well as litigants, have an equal protection right to jury selection procedures that are free from state-sponsored group stereotypes rooted in, and reflective of, historical prejudice. See Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991); Edmonson v. Leesville Concrete Co., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991); Georgia v. McCollum, 505 U.S. -, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992) .
(Emphasis added.) This is what appellant’s complaint is all about; and the majority’s attempt to gloss over this constitutional argument is unpersuasive.
The majority’s truncated treatment of appellant’s constitutional challenge implicitly relies upon three, stepped, fall-back positions: 1) Because a military accused is not entitled constitutionally to a trial by his peers, Batson and J.E.B. somehow apply differently to racial and gender discrimination in courts-martial than they do in civilian trials; 2) even if they do apply fully to courts-martial, they apply only to such discrimination as it is manifest in peremptory challenges in the courtroom, not to the same discrimination that might be manifest at other stages in the jury-selection process; and 3) even if they apply to courts-martial and even if they apply to the entirety of the jury-selection process, Article 25, UCMJ, 10 USC § 825, somehow permits different application to the stage of the process at which the convening authority selects the members. Each of these arguments may be quickly joined and rejected.
165. First, appellant’s lack of a right to be tried by a jury of his peers does not translate into lack of a right to have the factfinders selected without regard to racial or gender stereotypes. In United States v. Santiago-Davila, 26 MJ 380 (CMA 1988), this Court foursquare applied Batson’s constitutional veto of racial discrimination against civilian jurors to identical discrimination against members of courts-martial. We reaffirmed that unwavering commitment as recently as last term in United States v. Greene, 36 MJ 274 (CMA 1993). I assume that the majority does not intend to sound retreat from those cases, but I cannot reconcile the majority opinion here with them.
Second, the majority cannot escape the inescapable by any hint that Batson’s constitutional sword is unsheathed only in the courtroom and only to protect against litigants’ challenges. The Supreme Court long ago recognized the extended swath cut by such a sword in search of stereotype class discrimination in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), where the Court struck down a gender-discriminatory jury registration requirement as a violation of the Sixth Amendment. In J.E.B. v. Alabama, supra, the Court made clear that, while “Taylor relied on Sixth Amendment principles, ... the opinion’s approach is consistent with the heightened equal protection scrutiny afforded gender-based classifications.” — U.S. at-, 114 S.Ct. at 1424. Indeed, the Batson Court itself made specific reference to examination of the various stages of the selection process in search of unlawful discrimination. 476 U.S. at 87-88, 106 S.Ct. at 1718.
Finally, the majority cannot scramble for refuge behind the shield of Article 25 in order to insulate the member-selection process and to isolate application of Batson and J.E.B to peremptory challenges. This statute, without any parallel in civilian justice systems, permits the convening authority to handpick members for a court-martial panel who are “best qualified for the duty,” Art. 25(d)(2), from among those “eligible” to serve, see Art. 25(a), (b), (c)(1), and (d)(1). Even in the context of such unique power of subjective discretion, however, I would think it would be clear from Batson and J.E.B. (but perhaps it needs to be bluntly asserted): ‘White male” is not a proxy for “best quali*321fied,” either constitutionally or logically. It is precisely such short-hand equation of group stereotypes with competence that the Supreme Court rebuked in Batson and J.E.B.
166. Accordingly, it should be clear from these cases that racial and gender discrimination at any stage of the selection process violates the Fifth Amendment. The majority’s slight-of-hand that seeks to divert attention by calling such pernieiousness “court stacking” changes nothing.4 “Court stacking” discrimination on the basis of race or gender violates not only Article 25, but also the Fifth Amendment. Changing the name of the evil changes neither the nature of the evil, the standards and the burdens for measuring it, nor its constitutionally required remedy. Fifth Amendment law applies here,5 not Article 25 law.
Invoking the Right: Who Does What and When
Prior to the Batson decision, a criminal defendant who complained of denial of equal protection from racially discriminatory exclusion of jurors had to prove systematic exclusion of members of a certain race. See Batson v. Kentucky, 476 U.S. at 82 n. 1, 106 S.Ct. at 1715 n. 1; Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). A defendant seeking to do so was faced with a presumption, otherwise, that no such purposeful exclusion had occurred. Id. at 221-22, 85 S.Ct. at 836-37. Over time, lower Federal courts “reasoned that proof of repeated striking of [members of a particular race] over a number of cases was necessary to establish a violation of the Equal Protection Clause.” Batson v. Kentucky, 476 U.S. at 92, 106 S.Ct. at 1720.
The Batson Court, however, “rejected] this evidentiary formulation as inconsistent with standards that have been developed since Swain for assessing a prima facie case under the Equal Protection Clause.” 476 U.S. at 93, 106 S.Ct. at 1721. While the defendant continues to carry the burden of persuasion on the issue, now “[c]ircumstantial evidence of invidious intent may include proof of disproportionate impact.” 476 U.S. at 93, 106 S.Ct. at 1721. The “totality of the relevant facts” may give “rise to an inference” of purposeful discrimination sufficient to make the required prima facie showing. 476 U.S. at 94, 106 S.Ct. at 1721. One recognized means of doing so is to prove “that members of the defendant’s race were substantially underrepresented on the venire from which his jury was drawn, and that the venire was selected under a practice providing ‘the opportunity for discrimination.’ ” 476 U.S. at 95, 106 S.Ct. at 1722. In short, to carry the burden of persuasion successfully, a complaining defendant need not show *322systemic discrimination over time but may rely, instead, on facts relating to the selection of jurors solely in his case.
167. Once a defendant makes a prima facie showing of purposeful discrimination based on the totality of the circumstances, the Government is required to come forward and articulate a neutral explanation for its actions relating to the particular case then at trial. Mere denial of “discriminatory motive” or assurance of “good faith” will not suffice. 476 U.S. at 98, 106 S.Ct. at 1723-24. Thereafter, the judge has “the duty to determine if the defendant has established purposeful discrimination.” 476 U.S. at 98, 106 S.Ct. at 1724. This finding concerning discrimination is one of fact. 476 U.S. at 98 n. 21, 106 S.Ct. at 1724 n. 21.
The Court in J.E.B. made clear that resolution of a claimed discrimination by gender follows the same process. Justice Blackmun explained:
As with race-based Batson claims, a party alleging gender discrimination must make a prima facie showing of intentional discrimination before the party exercising the challenge is required to explain the basis for the strike. Batson, 476 U.S. at 97, 106 S.Ct. at 1723. When an explanation is required, it need not rise to the level of a “for cause” challenge; rather, it merely must be based on a juror characteristic other than gender, and the proffered explanation may not be pretextual. See Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991).
— U.S. at---, 114 S.Ct. at 1429-30.
C
At the outset of considering how the events leading to selection of appellant’s court-martial panel measure against the legal principles just set forth, I should plainly state that the issue as I see it is not whether the convening authority did in fact violate appellant’s Fifth Amendment right to equal protection; rather, it is whether the military judge correctly analyzed and disposed of appellant’s claims under Batson and J.E.B. that the convening authority did so.
In several respects, I believe that the military judge did not. In discussing appellant’s claims and the military judge’s response to them, I will follow the analytical construct of Batson, J.E.B., and Greene, 36 MJ at 278 n. 2.
Step 1: Prima Facie Showing of Purposeful Discrimination
168. Appellant met his initial burden of making a prima facie showing of purposeful discrimination in selection of the court members. Actually, he did so as to three distinct Fifth Amendment violations.
First, when the convening authority withdrew appellant’s case from the racially mixed panel of members detailed in CMCO # 1 and referred it to the all-white panel of members in CMCO #4, and when the defense complained of this, there was a prima facie showing of a Batson violation. This Court stated in United States v. Greene, 36 MJ at 278, that a prima facie showing is made “when a trial counsel exercises a peremptory challenge to exclude ‘a member of a cognizable racial group,’ 476 U.S. at 96, 106 S.Ct. at 1723, from membership on a court-martial and the challenged member is also of the same race as the accused.” I fully agree with the practical view of the world expressed by Judge Cox in his separate opinion in United States v. Carter, 25 MJ 471, 478 (CMA 1988), that the convening authority’s decision not to choose some of the nominees for court-martial service is “the functional equivalent of an unlimited number of peremptory challenges.” Thus, when the convening authority withdrew appellant’s case from a racially mixed panel and referred it to an all-white panel, his action was akin to a prosecutor exercising peremptory challenges against the members of the racially-mixed panel. That is enough, under Greene, to establish a prima facie showing of purposeful discrimination which, in turn, triggers the Government’s responsibility to offer a race-neutral explanation.
Second, appellant demonstrated “that members of the defendant’s race were substantially underrepresented on the venire from which his jury was drawn, and that the *323venire was selected under a practice providing ‘the opportunity for discrimination.’ ” Batson v. Kentucky, 476 U.S. at 95, 106 S.Ct. at 1722. Of the list of 45 officer nominees sent to the convening authority from which he selected the members subsequently detaüed on CMCO #4, only 4 were African-American (less than 9%). From this list, the convening authority selected 12 officers as members; none was African-American (0%). These figures compare adversely to the statistical data furnished by the defense relative to the African-American officer population at Fort Hood (15%) and at Fort Sül (12%). App. Ex. XLI at 63 (Hood), at 64 (Sül).
169. I recognize that the convening authority also selected 15 other officers as alternates, of which 2 were African-American (13%). App. Ex. XLI at 18-20. Of course, selection of alternates — possible members of the court-martial — conceptuafiy does nothing to vitiate the prima facie case of discrimination in choosing the actual members. This conclusion has real force, as weU, given the practical unlikelihood that, in the absence of some unforeseen circumstance, any alternate actuaUy would be detaüed when there were 12 primary members.
Related to use of alternates, one other matter is worth at least momentary pause. Interestingly, in this case, the SJA appeared to suggest early-on a mechanism for determining which alternates would be detaüed as members if ever they were needed (by recommending that the convening authority, in selecting members for CMCO #4, number the alternates 13 through 27 “to signify the order in which they should serve on the court-martial panel”), and the convening authority apparently accepted that recommendation. Nonetheless, the moment that the opportunity actuaUy arose to detaü alternates, the convening authority abandoned that mechanism without so much as a tip of his hat — detailing numbers 16 and 17, rather than 13 and 14.
Appellant having shown statistical under-representation of African-Americans during the selection process, the second prong required of this showing scarcely can be disputed: The members were “selected under a practice providing ‘the opportunity for discrimination.’ ” Batson v. Kentucky, 476 U.S. at 95, 106 S.Ct. at 1722. Members of the convening authority’s subordinate commands were entirely free to nominate any officer for selection that they deemed appropriate, their discretion being fettered only by Article 25. As to the selection by the convening authority, this Court often has acknowledged the convening authority’s sole discretion in this regard under Article 25. See, e.g., United States v. Greene, 20 USCMA 232, 238, 43 CMR 72, 78 (1970). Cf. Castaneda v. Partida, supra (“key-man” system for selecting grand jury members — where state judge chose commissioners who, in turn, selected prospective grand jurors based on certain statutory criteria such as citizenship, literacy, sound mind, moral character, and lack of criminal record, 430 U.S. at 484-85, 97 S.Ct. at 1275 — was “highly subjective” since commissioners used own discretion and was susceptible of abuse since Hispanic surnames were obvious from the jury roüs). 430 U.S. at 497, 97 S.Ct. at 1281.
170. Just as surely as it is within a prosecutor’s private and sole discretion to decide whom to chaUenge peremptorily, so is it within a commander’s discretion whom to nominate and within a convening authority’s discretion whom to select. EquaUy, the authority is subject to abuse. Thus, just as surely as a prosecutor’s peremptory challenge triggers a duty to explain when proper objection is made, a sinfilar duty arises in the face of substantial underrepresentation of a race or gender among the nominees or selectees. Neither the fact that Article 25 states neutral selection criteria nor any “presumption that the officials discharged their sworn duties” wifi rebut a prima facie case of discrimination. See Castaneda v. Partida, 430 U.S. at 498 n. 19, 97 S.Ct. at 1282 n. 19.
Further, in this case, the only personal information on the nominees reflected on the nomination sheets were their race and gender. Whüe such identifiers in themselves may not constitute an evü, see United States v. Green, 37 MJ 380 (CMA 1993), their pointed inclusion here certainly heightened “ ‘the *324opportunity for discrimination.’’’ See Castaneda v. Partida, supra.
The third distinct prima facie showing of a Fifth Amendment violation concerns exclusion of women. No woman was on the officer panel in CMCO # 1; no woman was on the officer panel in CMCO # 4; only 1 woman was on the enlisted group detailed to the panel in CMCO #7; and, once appellant withdrew his request for enlisted members which occasioned relieving that sole woman and detailing additional officers, no woman was on the panel ultimately detailed to try appellant. Overlaying the preceding analysis on these facts, surely a prima facie case of gender discrimination was made: The female gender statistically was grossly underrepresented, and the members were selected under a system that provided “opportunity for discrimination.’’ That is all that is required by J.E.B.
171. Finally, regarding appellant’s prima facie showing of discrimination, I am unpersuaded by the majority’s reliance on the convening authority’s post-objection action of detailing African-Americans and one woman as enlisted members. The heterogeneity of the enlisted representation on the panel is in stark contrast to homogeneous officer representation on this same panel. This contrast between the officer and enlisted communities of the panel only raises more questions than it answers about the circumstance of detailing members in this case and, if anything, supports appellant’s prima facie showing of discrimination.
Step 2: Race-neutral Explanation
As to each of these three distinct prima facie showings of purposeful discrimination, the burden shifted to the Government to offer a race-neutral explanation. In the usual ease, in which the apparent discrimination is in the form of a prosecutor’s peremptory challenge, this explanation might well take the form of an oral representation by the prosecutor as to his motivation for the challenge. After all, the alleged offending official is present in the courtroom, and his explanation might be viewed as an offer of proof or, in a way, as evidence itself for this limited purpose.
When the official is the convening authority (as to his selection of the members) or his subordinate commanders (as to their nomination of potential members), however, that is not the case. Trial counsel has no first-hand “evidence” to offer by way of explanation— indeed, he likely has no dreamy idea why those officers acted as they did. In this context, then, it would seem logical that the only way in which the Government can meet its burden to come forward with a race-neutral explanation for the apparent purposeful discrimination is actually to offer evidence. Compare Batson v. Kentucky, supra (counsel needed only to offer oral explanation for his exercise of a peremptory challenge), with Castaneda v. Partida, 430 U.S. at 498, 97 S.Ct. at 1282 (Court remarked on absence of evidence to explain commissioner’s out-of-court alleged discrimination).
172. In this ease, no evidentiary hearing was held by which the Government could offer a race-neutral explanation for the three instances of apparent purposeful discrimination noted earlier. In light of the fact that the alleged offenders were not in the courtroom and never were called to the courtroom, and given the highly personal and subjective decisions that are in question (that is, nominating and selecting officers “best qualified” for service), it would seem beyond question that any “explanation” divined by the military judge here was speculation, no more and no less. That is inadequate.
Moreover, even the speculation seems to fall short. For instance, regarding the withdrawal of appellant’s case from CMCO. # 1, the military judge suggested, “This was done to allay defense concerns about pretrial publicity.” Of course, assuming such defense concern, it in no way inevitably justified an abrupt withdrawal of the case from a panel that had not been subject to any voir dire regarding the impact of publicity on their ability to serve. Neither does it in any way whatsoever explain why the replacements were all-white.
The military judge did touch upon this latter concern when he made reference to the *325convening authority’s “self-imposed limitations” of restricting the eligible pool of officers at Fort Hood to those who had arrived on or after January 1, 1989 (only l]é months earlier). Finding — on the basis of what, I am unsure — that this decision “shrank significantly” “the number of black officers from which to choose,” the military judge essentially dismissed the defense’s statistical data that showed substantial underrepresentation of African-Americans. Apart from any evidentiary basis for this conclusion, I have to wonder at the illogic of justifying an apparently discriminatory action by one’s own intentional prior decision that would make such discriminatory effect virtually inevitable.
As to the prima facie showing of gender discrimination, there does not appear anywhere even a fainthearted effort to offer any gender-neutral explanation.
Step 3: Factfinding as to Discrimination
173. The final step in resolving Batson and J.E.B. issues is for the trial judge to decide whether the objecting party has carried his burden of showing purposeful discrimination. This is a factfinding exercise, Batson v. Kentucky, 476 U.S. at 98 n. 21, 106 S.Ct. at 1724 n. 21, and the military judge’s curious view that “there aren’t any factual issues to be resolved” reflects a serious abdication of his responsibility.
Moreover, he simply was dead wrong when he stated, “The accused, initially, as I understand, elected to be tried by a panel of officers and enlisted soldiers.” The defense made abundantly clear that its request for enlisted members was a tactical move in the hope of avoiding the all-white officer panel and in order to learn the race and gender of the enlisted members who would be detailed. In no way, either initially or ultimately, did appellant indicate a wish actually to be tried by other than a panel of officers; he simply sought a panel the selection of which was not apparently infected by purposeful racial and gender discrimination. He may not be forced to abandon his statutory right to an officer panel and to add enlisted members in order to get what the Constitution guarantees him. See United States v. McClain, 22 MJ 124 (CMA 1986).
I could spend a good deal of time discussing — literally sentence by sentence — the flaws in the military judge’s rationale for denying the defense motion. For instance, his reference to the convening authority’s detailing African-American members to other courts-martial as a factor to defeat appellant’s prima facie claim flies in the face of the fact that, since Batson, it no longer is required as it was under Swain to show a pattern of purposeful discrimination over time. Little would be gained, however, from such further dissection. Suffice to note here that the military judge for the most part did not engage in the required factfinding and, when he did seem to do so, acted on the basis of guesswork instead of evidence.
D
174. In sum, then, I believe that the majority opinion falls far short of the mark of reflecting an adequate treatment and resolution of appellant’s persistent claims of purposeful race and gender discrimination in the selection process that culminated in the panel that finally tried him. Just as troublesome, I am convinced that a proper analysis under Batson and J.E.B. and related Supreme Court cases, as well as Santiago-Davila and Greene from this Court’s precedent, ineluctably leads to this conclusion: The military judge apparently did not understand the analytical construct for resolving claims of purposeful discrimination in court-member selection and did not fulfill his responsibility in that construct.
Accordingly, I would return the record to the convening authority for an appropriate evidentiary hearing and for a proper analysis and resolution of appellant’s claims based on the resulting evidence. Anything short of such action tolerates not only a conviction but likely an execution of a human being under an unresolved cloud of suggested purposeful racial and gender discrimination.
Ill
As the majority acknowledges, 41 MJ at 290, ¶ 118, this Court held in United States v. Cur*326tis, 32 MJ 252, 270-71 (CMA), cert. denied, 502 U.S. 952, 112 S.Ct. 406, 116 L.Ed.2d 354 (1991), that proportionality review of an adjudged death sentence is required by Article 66(c), UCMJ, 10 USC § 866(c). The second time that case came before this Court, we suggested: “[I]t would be fitting for the Court of Military Review to consider generally similar cases reviewed by the Supreme Court of the United States in which state courts have imposed the death penalty for like crimes on that basis.” United States v. Curtis, 33 MJ 101, 109 (CMA 1991) (Curtis II), cert. denied, 502 U.S. 1097, 112 S.Ct. 1177, 117 L.Ed.2d 421 (1992). This suggests a possible universe of cases against which to compare appellant’s case for proportionality, but it does not address the equally troublesome question of which factors or points of identity will be used for comparison against cases in that universe.
175. I read appellant’s contention in this Court (Issue XL — at 290 ¶ 118) to focus primarily on the latter, but the majority opinion, like the court below, ignores the latter and finds comfort in its resolution of the former. I am unable to understand how the majority can satisfy itself that the statutorily required comparison was made without coming to grips with the question regarding on what bases that comparison must be made.
The universe of cases that was suggested in Curtis II — that apparently was followed by the Court of Military Review in this case and that apparently satisfies the majority here — is relatively clear: It includes cases 1) reaching the Supreme Court from all of the state jurisdictions 2) where the death penalty actually has been adjudged 3) for like crimes. While the question of an appropriate universe is incredibly complex, I have no particular quarrel with this definition.
Within this universe, the Court of Military Review found the five cases cited by the majority, see 41 MJ at 290 ¶ 118, although it is not at all clear that the Court of Military Review considered only those five cases, see 34 MJ 956, 969 n. 18 (1992) (“Among the cases examined were ... ”). After examining those cases, the court “concluded that the sentence is generally proportional to those imposed by other jurisdictions in similar situations.” 34 MJ at 969. The only indication of points of comparison is in the very general phrase, “in similar situations.”
In light of the majority’s avoidance of the issue, I do not believe that it is appropriate for me, now, to offer a view of appropriate points of comparison. One approach that certainly suggests itself is a comparison of aggravating factors and of aggravating and mitigating circumstances; a rather complex scheme for implementing this approach was discussed in State v. Marshall, 130 N.J. 109, 613 A.2d 1059, 1075-76 (1992). Others might reasonably be suggested and found suitable.
176. For now, I shall limit myself simply to saying this: Selecting an appropriate universe of cases against which to conduct a proportionality review is useless unless the Court of Military Review, having defined the universe, knows what points of comparison it will look for. The Court of Military Review in this ease did not define those points of comparison; appellant has complained of that; but the majority here shuffles his complaint off into a discussion of universe, instead. That is a non sequitur. An appellant facing execution deserves more. So does the rest of society.
rv
In Issue LXVIII, appellant asks, in part, “whether the system of appointing capital defense counsel in the military is inadequate ... in that the military system cannot provide adequate continuity of counsel____” I am persuaded that the “military system” can “provide adequate continuity of counsel.” Regrettably, however, generally it has not done so, and I take this opportunity to express at least this Judge’s growing concern over the failure of the pattern of assignment of appellate counsel to provide continuity in death-penalty cases — continuity that assures the client competent representation and that assures the system of appellate judicial review that it can proceed with some modicum of efficiency and effectiveness.
The majority writes: “To the extent that appellate counsel have lacked experience or suffered from lack of continuity, the impact *327has been on the efficiency of judicial administration rather than the quality of representation.” 41 MJ at 299 ¶ 129. Describing the bend-over-backward approach that has been followed in an effort to avoid harm to appellant from lack of continuity of appellate representation, the majority recites:
Recognizing the potential inefficiencies noted above, both the court below and this Court have liberally granted extensions of time and allowed filing of supplemental pleadings and citations of authority even after oral argument. This Court has considered issues not raised before the court below____ [W]e have accommodated counsel to the maximum extent possible to ensure that all issues are considered. Defense appellate counsel concede that their pleadings have been voluminous, with overlapping and redundant assignments of error.
41 MJ at 299 ¶ 130. That is no way to run a ship!
The Ungovemed Revolving Door of Defense Counsel
177. Seven appellate counsel represented appellant in the Court of Military Review; five others represented him in this Court.6 It is unclear at times who was the lead counsel in the Court of Military Review because counsel is not required by that court’s Rules of Practice and Procedure or by the court’s internal operating procedure (see Rule 26, Court of Military Review Rules of Practice and Procedure, 22 MJ CXXXVIII) to file a motion for leave to withdraw if the reason for withdrawal was reassignment outside the Defense Appellate Division and if the chief of that division assigns new counsel from within the division. See para. 2-2, USACMR Internal Operating Procedure, 1986; Rule 13.1(b)(2), USACMR Internal Rules of Practice and Procedure (1992). Compare Rule 16(b), Rules of Practice and Procedure, United States Court of Military Appeals, 38 MJ LXXXIV. No expression of concern appears anywhere for even informing the client of an impending change in representation, much less seeking the client’s views. See Standard 5-5.3, ABA Standards for Criminal Justice, Providing Defense Services (2d ed. 1986); Rule 16(b), USCMA Rules, supra; Rule 1.16(d), AR 27-26, Professional Conduct for Lawyers (1992).
The confusion is so pervasive that even opposing counsel demonstrated confoundment: In a notice of appearance filed on June 24, 1991, the lawyer who apparently, but not clearly, was appellant’s third lead counsel in the Court of Military Review observed in a footnote that a government motion for extension of time filed 3 days earlier had asserted: “Appellate defense counsel, Captain Michael Coughlin, does not oppose this motion.” Appellant’s counsel continued by noting, however: “Captain Coughlin was released from this case several weeks ago by the Chief, Defense Appellate Division, as he was pending reassignment to a commissioner’s position with this Court.”
178. Moreover, without even scratching the surface, it is clear from various pleadings in this case that lack of continuity and accountability of counsel directly caused substantial inefficiencies at both appellate levels. For example: This same lawyer revealed in an affidavit that he was asked to assume lead chair representing appellant in June 1991 because Captain Coughlin had been reassigned, over objection of the Chief, Defense Appellate Division; this lawyer, of course, found that assuming this responsibility on top of his other cases (he was not relieved of his normal workload) was extraordinarily burdensome; these pressures precluded him from attending any educational seminar on capital litigation (he “had no experience or specialized training in the field of capital litigation”) or to meet with appellant until *328after oral argument or to engage in any “extra-record investigation”; and that, when he was approached by a commissioner of the Court of Military Review in November 1991 about scheduling oral argument, the lawyer “had not even completed reading the record of trial.” Notwithstanding his expression of a wish for a date in January 1992, oral argument was set for December 9, 1991. DefApp. Ex. A. A motion to reschedule oral argument was denied on December 4, 1991.
Another example: So hard pressed was this lawyer to prepare for oral argument that he “had overlooked prior to oral argument” what he considered to be an important issue, which caused him to file — after oral argument — a motion to submit a Supplemental Assignment of Error. During this same post-argument time frame, he had the opportunity, for the first time, to do some investigation into appellant’s medical records (other than those in the record of trial) and into the interpretation of some of those records and tests. This investigation ultimately persuaded him to file a motion to submit yet a second Supplemental Assignment of Error — this time, via a motion for reconsideration after the Court of Military Review had issued its decision in this case.
179. It is plainly evident, then, the mischief created in the Court of Military Review from lack of continuity of representation there of appellant: This lawyer found himself so far behind the time curve that, 1 month before argument, he had not even completed reading the transcript and that, after oral argument, he was forced to file two motions to draw additional issues to the court’s attention. This is a far cry from traditional concepts of efficient or effective appellate review!
■ The chaos continued in this Court. The Judge Advocate General forwarded this case to this Court on May 8,1992, for our mandatory review, see Art. 67(a)(1), UCMJ, 10 USC § 867(a)(1) (1989). On June 24, yet another lead counsel for appellant (apparently, the fourth) filed a Notice of Appearance and Motion to Hold Case in Abeyance. Therein, she reported that her predecessor, referred to above, had departed the Defense Appellate Division on reassignment to Panama on May 22 and that this “departure was sudden and presents grave problems in regard to the continuity of representation of appellant.” She and two other associate appellate counsel had not been detailed to represent appellant until May 11 — a scant 11 days before her predecessor’s departure. She reported in detail about a variety of events and problems that precluded any of the three from any meaningful discussion at all with her predecessor. “Therefore, the undersigned were left with a 1 $ page memorandum from [her predecessor] discussing what he thought were the best issues in the case and two large boxes of disorganized files with a good luck note attached thereto.”
The motion represents, as well, that all three of these newly appointed counsel were “woefully underqualified to represent an accused in a capital case.” Counsel offered a detailed professional résumé of the experience and education of each of the three, which tended to support counsel’s assessment. Indeed, appellant’s lead counsel in this Court had no legal experience prior to entering the Army; was assigned directly out of the JAG basic class to the Defense Appellate Division; and little more than 1 year later was assigned as lead appellate counsel in this capital case, without having the benefit of trying a single case in a civilian or military courtroom. Ruefully, the backgrounds of the other two are no more substantial. The disadvantage to which this lack of training and experience put this defense team — brand new, with no continuity at all from prior counsel — is palpable.
180. This Court granted a number of motions for enlargement of time within which to file a defense assignment of errors and brief; each was pursuant to a detailed accounting by defense counsel of their efforts in preparing to represent appellant in this Court as well as to meet their legal and ethical responsibilities to their other clients. Finally, we denied a similar request for more time on October 9. 37 MJ 16. Less than 1 week later, appellant’s lead counsel and one of her associate counsel by separate motions sought this Court’s permission to withdraw from this *329case. In both instances, counsel included a detañed averment of what they already had done to prepare to represent appeUant and what they believed yet needed to be done if their legal and ethical responsibilities in this capacity were to be met. In both instances, too, counsel concluded that these tasks were impossible to accomplish within the time permitted by this Court and, so, felt absolutely compeñed to ask to be relieved from this düemma. The supervising attorneys of both these counsel also moved to withdraw.
Ultimately, Of course, as the majority opinion implies, competing pressures were worked out, and appellant's appeal proceeded. What I have sought to offer, however, is just some flavor of the professional consternation caused to appeUate counsel of good intentions and general competence but of limited experience and special training; of the acute problems with efficient and orderly processing of this case through the course of appeUant’s statutorily guaranteed appeUate review; and of the untoward picture of our appeUate system that aU this inevitably portrays.7
Governing the Resolving Door
181. It is time to fix what is broken.
I am not alone in expressing frustration of this Court at the delays and inefficiencies in capital Utigation that are the direct result of lack of continuity of appeUate counsel. For instance, on December 20, 1993, in the appeal of the capital case of United States v. Gray, 39 MJ 351, we pubUshed an order in which we expressed the Court’s “concern[] about the management and continuity of appefiate representation in this case.” We proceeded to direct each counsel of record before this Court in that ease to file an affidavit directed at his entry into and departure from active representation of Gray; what counsel had done during his representation; what counsel had done to assure a smooth transition to subsequent counsel when he was reassigned; what had been done to advise Gray about counsel’s intended withdrawal and Gray’s reaction if any; and why withdrawing counsel had not complied with this Court’s Rule 16 by filing a motion to withdraw.
Additionañy, as recently as June 17, 1994, in the appeal of yet another capital case— United States v. Murphy — this Court published an order that: reflected counsel’s assurance “that the withdrawal requirements of Rule 1.16, Rules of Professional Conduct for Lawyers, Army Regulation 27-26 (Legal Services, 1 May 1992), have been satisfied”; granted “the defense motion to extend its final briefing time until September 30,1994”; and established a briefing schedule for the Government’s answer and any defense reply. 40 MJ 288.
182. Importantly, Judge Cox, joined by Chief Judge Sullivan, dissented from further extension of briefing time, noting that the briefs under our rules had been due on Sep*330tember 20, 1993. The reasoning supporting this dissent is telling:
Extensive briefs were filed in the Court of Military Review. There have been no material changes in the law; the record of trial has not changed; and there have been no other reasons advanced to justify further delay____
Justice delayed is not justice.
40 MJ 288. '
My brothers were right: None of these things had changed. Only one thing had changed: Appellate counsel for Murphy— and they had changed over and over! The problem in Murphy was not the current lawyers taking more time than necessary to file their brief, and I voted for the order because nothing is gained and much is lost by forcing lawyers into court before they adequately are prepared to be there. Rather, the problem was turnover of appellate counsel that effectively put the case on a virtual treadmill.
My brothers were right about one other thing, too: Justice delayed is not justice — not to the accused and not to society. It is time to resolve the continuity of counsel problem in order to preclude future delays of justice in this regard.
*331APPENDIX A
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*332APPENDIX B
I, Major John C. Napoli, Jr., SSN . .... affirm that the following is a true and correct statement of what occurred to the best of my recollection during the voting on the sentence of death in the case of Private Dwight J. Loving.
1. As a panel member in the case, X heard all of the evidence during the sentencing portion of the trial.
2. Following the closing arguments and instructions from the military judge, we adjourned to deliberate.
3. Colonel Aylor was the president of the panel and he took charge in leading the discussions. He discussed the facts and evidence in the case.
4. Following Colonel Aylor's remarks, we voted by secret written ballot. Colonel Aylor counted the ballots.
5. Since there was not a consensus, we discussed the facts and evidence in the case again. Afterwhlch, Colonel Aylor instructed us to vote again. This vote resulted in an unanimous sentence to death, the voting ceased and the results were marked on the sentencing worksheet.
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*333APPENDIX C
I, Captain Thomas 3. williams, SSK . .affirm that the following is a true and correct statement of what occurred to the best of my recollection during the voting on the sentence of death in the case of Private Dwight J. Loving.
1. As a panel member in the case, I heard all of the evidence during the sentencing portion of the trial.
2. Following the dosing arguments and instructions from the military judge, ve adjourned to deliberate.
3. colonel Aylor was the president of the panel end he took charge in leading the discussions. We dlscuesed the facts and evidence in the case. Then Colonel Aylor told us that ve each had two options, ve could vote life imprisonment or death, hut that daath required a unanimous vote.
¿. Following Colonel Aylor's remarks, we voted by secret written ballot. Colonel Aylor counted the ballets end the result was seven in favor of death and one in fevor of life imprisonment.
5. Since there vas no consensúe, we dieoueesd the facte and evidence in the case again. We did not seek help from the military judge. Instead, following our continued deliberarions, colonel Aylor instructed us to vote again. We voted using the same procedure as before, picking between death and life Imprisonment. The result of the second vote was eight in favor of death and zero in favor of life. Since this vote resulted in an unanimous sentence to death, the voting ceaeed and the results were marked on the sentencing worksheet.
£. Following these voting procedures, ve returned to the courtroom and sentenced Private Loving to death.
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November 23, 3.993
The Honorable Les Aspin
Secretary of Defense
Department of Defense
Room 3E880
The Pentagon
Washington, D.c. - -20301-3000
Dear Secretary Aspin:
X am writing to inquire about the adequacy of the defense services provided in death penalty cases brought against American servicemen under the Uniform Code of Military Justice.
At a time when the Congress has been devoting considerable attention to the adequacy of the defense accorded to capital defendants in state court proceedings, and with the Clinton Administration strongly supporting federal legislation to guarantee that an adequate defense is actually provided in all such cases, it seems to me especially important that the federal government provide, and be seen to provide, the expert legal assistance necessary to ensure that the death penalty will not be erroneously imposed in any court of the United States. Many if not most of the death penalty prosecutions now occurring under federal jurisdiction are brought in military courts martial. However, the military services have not, to my knowledge, adopted standards and procedures governing qualification, appointment, and training of defense counsel in such cases/ nor guaranteeing the independent expert and investigative services necessary to an adequate defense.
Xn recent years, the Congress has been considering various proposals for comprehensive reform of habeas corpus law and procedure. Much of the impetus for this review has been provided by mounting evidence that the adjudication of death penalty cases originating in state courts has been unreasonably protracted, and at the same time that many of these cases are marred by serious factual and constitutional errors, since 1990, the House Judiciary Subcommittee on Civil and Constitutional Rights, which X chair, has reviewed a great deal of evidence showing that the greatest single cause of both delay and error in capital cases is the systemic inadequacy in the provision of defense services.
*335To get at the root of this problem, a number of legislative proposals have included thoroughgoing reforms in the way that state criminal courts appoint, train, and compensate defense counsel in the death penalty cases from the trial level onward. One of these proposals, Senator Biden's Habeas Corpus Reform Act of 1993, S. 1441, was introduced last summer with the strong support of President Clinton and the Department of Justice. This legislation would have provided very powerful incentives for the states to create special certification authorities to identify truly competent lawyers available for appointment as defense counsel in death penalty cases at the trial and post-trial stages, and would have helped to ensure that the defense in such cases was provided with the expert and investigative services necessary to ensure a fair and reliable result. Similar legislation has been introduced in the House by Judiciary Committee Chairman Jack Brooks. See Title III of H.R. 3131. While it does not appear that these habeas reform proposals will be acted on in the current session of the Congress, I think it is fair to say that a consensus is developing that whatever habeas reform legislation finally does emerge from the legislative process must include measures to improve the adequacy of defense services in state court capital proceedings.
In view of this emerging trend in habeas corpus reform, and considering the strong support of the President and the Attorney General for federal intervention to improve the level of defender services in state death penalty cases, it seems self-evident to me that the military justice system should review its performance in this area. In particular, I am concerned that
(1) defense counsel in military death penalty cases need not have the level of experience required of their civilian counterparts, ££*. 21 U.S.C. S 848 (q) 95), - (6) (setting substantial minimum experience requirements for appointed counsel in federal death penalty trial and' post-trial proceedings),
(2) no procedures are in place — such as a presumptive right to appointment and compensation of qualified civilian eo-counsel — to provide continuity of representation,
(3) the military justice system may have failed to recognise the necessity of providing the defense with independent and highly-qualified investigative and expert services in capital cases at the trial and post-conviction levels.
I would appreciate hearing from you as to how current practice concerning the provision of defense services in death penalty cases *336within the military justice system measures up to the standards advocated for state criminal justice systems by the Administration. I look forward to working with you to ensure that in proceedings where life itself íb at stake, no American serviceman or servicewoman is denied the essential tools of an adequate defense.
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. The majority contends that no issue of unlawful command influence is before this Court because "[t]here is absolutely no suggestion in the affidavits that Colonel Aylor exercised unlawful command influence.” 41 MJ at 238 ¶ 15. Defiantly denying the true color of the cloud created by these affidavits, however, does nothing to alter their dreary tone. To prove the point, I simply pose this question: Can it be more than rhetorical to ask whether anyone except the most senior ranking person on the court could have unilaterally imposed on all of the other, presumably *315intelligent, officer members a procedure of his own handiwork that was in marked deviation from that which clearly and in detail was prescribed by the military judge? I am not so naive as to believe that a second lieutenant (or a chief warrant officer 3, the rank of the junior member on appellant’s panel) could have been so possessed of natural leadership that he so effectively could have led astray a whole panel of his colleagues. I am reminded of Justice Felix Frankfurter’s admonition, "And there comes a point where this Court should not be ignorant as judges of what we know as men.” Watts v. Indiana, 338 U.S. 49, 52, 69 S.Ct. 1347, 1349, 93 L.Ed. 1801 (1949). Secure in the assumption that a junior-grade officer could not have accomplished what this colonel did, and in light of the fact that the procedure devised by Colonel Aylor in several important respects was at odds with the carefully crafted procedure mandated by the President of the United States, how can Colonel Aylor's role in this transgression be described as anything but “unlawful command influence”?
I am especially perplexed by the vote and separate comments of Chief Judge Sullivan on this issue. By himself, the Chief Judge merely seems to agree with the majority’s view that these affidavits — which I believe raise the possibility that the influence of rank was used to implement unlawful procedures in lieu of those that were carefully constructed to protect an accused's substantive and procedural due process rights — simply does not present an issue of unlawful command influence. I confess, however, that I am unable to reconcile this view with the Chief Judge’s separate opinion in United States v. Greene, 41 MJ 57, 59 (CMA 1994) — a case in which he forthrightly recognized that failure to follow important voting procedures in the deliberation room opens the door to unlawful command influence during those deliberations.
. Counsel's less-intensive focus on apparent unlawful exclusion of women from the court-martial panel is understandable in light of the absence of any authoritative caselaw at that time that definitively put gender discrimination in this context on a par of unlawfulness with racial discrimination. Only recently has the Supreme Court held that the former is as legally reprehensible as the latter. See J.E.B. v. Alabama ex rel. T.B.,-U.S.-, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994).
. It might be argued that counsel’s use of such phrases as better cross-representation and cross-section of the community sounds like an objection lodged under the Sixth Amendment right to trial by a jury of peers, which is inapplicable to courts-martial, rather one under the Fifth Amendment rights to equal protection and due process, which are applicable. See United States v. Santiago-Davila, 26 MJ 380, 389-90 (CMA 1988). It was abundantly clear, however, both in defense counsel's written motion and brief and in his advocacy in the courtroom that appellant’s objection to the selection process included the Fifth Amendment grounds. In any event, even if counsel’s bases had not been so clear, I would be unwilling to invoke waiver under these circumstances. Addressing such a possibility in Santiago-Davila the Court declined "to apply the doctrine of waiver so strictly — especially when we are dealing with a fundamental constitutional right not to be the victim of purposeful racial discrimination and when the defense has asserted a closely-related constitutional claim." Id. at 390.
. The implicit diminution of the seriousness of the discrimination by calling it simply "court stacking” is akin to an argument addressed by the Supreme Court in J.E.B. V. Alabama, - U.S. at - n. 14, 114 S.Ct. at 1428 n. 14:
The popular refrain is that all peremptory challenges are based on stereotypes of some kind, expressing various intuitive and frequently erroneous biases. But where peremptory challenges are made on the basis of group characteristics other than race or gender (like occupation, for example), they do not reinforce the same stereotypes about the group's competence or predispositions that have been used to prevent them from voting, participating on juries, pursuing their chosen professions, or otherwise contributing to civic life. See B. Babcock, A Place in the Palladium, Women’s Rights and Jury Service, 61 U.Cinn.L.Rev. 1139, 1173 (1993).
(Citation omitted.)
. In Davis v. United States, — U.S.-,-n. *, 114 S.Ct. 2350, 2354 n. *, 129 L.Ed.2d 362 (1994), the Supreme Court noted that it "never had occasion to consider whether the Fifth Amendment privilege against self incrimination, or the attendant right to counsel during custodial interrogation, applies of its own force to the military____” Noting that the President through the Manual for Courts-Martial and this Court through its opinions has fully applied the Supreme Court’s cases in that area to courts-martial, the Court "proceed[edj on the assumption” that its cases applied "to courts-martial just as they apply to state and federal criminal prosecutions." Similarly, as to the Fifth Amendment provisions that protect against racial and gender discrimination in jury selection, this Court in Santiago-Davila and Greene has fully applied Supreme Court cases to courts-martial. Unless and until the majority of this Court forthrightly holds otherwise, then, and in the absence of any indication from the Supreme Court to the contrary, I will proceed on the basis of our precedent that fully applies this Fifth Amendment protection to courts-martial.
. In the Court of Military Review, the following counsel represented appellant at one time or another during the barely more than Vk years this case was pending there: Captain Ralph Gonzalez (lead); Captain James K. Lovejoy; Captain Timothy Riley; Colonel Robert Kirby; Captain Michael Coughlin (lead); Captain Emmett Wells (lead); and Captain James Heaton. The following counsel have entered appearances in this Court: Captain Teresa Norris (lead); Captain David Thomas; Major Fran Walterhouse; Lieutenant Colonel James Weise; and Captain Roy Hewitt.
. Doubts about adequate continuity of counsel and related matters involving the level of defense services in military death-penalty cases recently was the subject of congressional attention. In a letter to the Secretary of Defense, attached to this opinion as Appendix D, the Chairman of the Subcommittee on Civil and Constitutional Rights, House Committee on the Judiciary, expressed concern that
(1) defense counsel in military death penalty cases need not have the level of experience required of their civilian counterparts, cf. 21 U.S.C. § 48(q)(5) — (6) (setting substantial minimum experience requirements for appointed counsel in federal death penalty trial and post-trial proceedings),
(2) no procedures are in place — such as a presumptive right to appointment and compensation of qualified civilian co-counsel — to provide continuity of representation,
(3) the militaiy justice system may have failed to recognize the necessity of providing the defense with independent and highly qualified investigative and expert services in capital cases at the trial and post-conviction levels.
Highlighting these concerns was intended “to ensure that in proceedings where life itself is at stake, no American serviceman or servicewoman is denied the essential tools of an adequate defense." For an excellent general discussion of related problems in connection with defense counsel in trial and appellate litigation of capital cases, see McFarland v. Scott,-U.S.-, 114 S.Ct. 2785, 129 L.Ed.2d 896 (Blackmun, J., dissenting from denial of petition for a writ of certiorari), and sources cited therein; D. Sullivan, The Last Line of Defense: Federal Habeas Review of Military Death Penalty Cases, 144 Mil.L.Rev. 1 (1994).