IN THE CASE OF
UNITED STATES, Appellee
v.
Thomas W. DOWTY, Lieutenant
U.S. Navy, Appellant
No. 03-0152
Crim. App. No. 9901701
United States Court of Appeals for the Armed Forces
Argued October 8, 2003
Decided August 18, 2004
GIERKE, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., BAKER, and ERDMANN, JJ., joined. EFFRON, J.,
filed a separate dissenting opinion.
Counsel
For Appellant: Lieutenant Marcus N. Fulton, JAGC, USN (argued).
For Appellee: Captain Glen R. Hines, Jr., USMC, (argued);
Colonel R. M. Favors, USMC, Commander Robert P. Taishoff, JAGC,
USN, and Lieutenant Ross W. Weiland, JAGC, USNR (on brief).
For Amicus Curiae: Kevin J. Barry, Esq. (argued); Philip D.
Cave, Esq., Eugene R. Fidell, Esq., and Stephen A. Saltzburg,
Esq. (on brief), for the National Institute of Military Justice.
Military Judge: R. L. Rodgers
This opinion is subject to editorial correction before final publication.
United States v. Dowty, No. 03-0152/NA
Judge GIERKE delivered the opinion of the Court.
A general court-martial composed of officer members
convicted Appellant, contrary to his pleas, of three
specifications of larceny and one specification of fraud against
the United States in violation of Articles 121 and 132, Uniform
Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 921
and 932 (2000), respectively. The adjudged and approved
sentence provides for Appellant to pay a $30,000.00 fine and to
be dismissed from the naval service. The Court of Criminal
Appeals affirmed the findings and sentence. United States v.
Dowty, 57 M.J. 707 (N-M. Ct. Crim. App. 2002).
This Court granted review of the following issue:
WHETHER APPELLANT’S COURT-MARTIAL WAS PROPERLY CONVENED
WHERE THE MEMBERS POOL WAS CREATED THROUGH SELF-SELECTION
AND NO MEMBERS WERE SELECTED BY THE CONVENING AUTHORITY
ACCORDING TO THE CRITERIA CONTAINED IN ARTICLE 25, UNIFORM
CODE OF MILITARY JUSTICE.
The lower court properly characterized this issue as
“unique in military jurisprudence.” Id. at 708. Appellant’s
command initially used only volunteers for the court-marital
panel. The granted issue asks this Court to evaluate a novel
preliminary screening process that generated the volunteers for
the court-martial panel and to examine the legal advice provided
to the convening authority (CA) as he selected the panel. For
the reasons set forth below, we conclude that (1) it was error
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United States v. Dowty, No. 03-0152/NA
to inject into the panel selection process the irrelevant
variable of a servicemember volunteering to be a member and
(2) although we reject and condemn the impermissible screening
of potential members with this irrelevant variable, here it did
not taint the proceedings or prejudice Appellant. We,
therefore, affirm the decision of the Court of Criminal Appeals.
I. FACTS
A. General background of Appellant’s offenses
and the extended delay of the trial on the merits
We outlined the general nature of the charges that
Appellant now stands convicted of when his case was before us in
1998 on an interlocutory appeal.
While serving on active duty in the Medical Service
Corps of the Navy, appellant allegedly conducted a private
business named Health Care Associates, under which he
submitted claims for reimbursement to the National Naval
Medical Center at Bethesda, Maryland. The charges in this
case allege that the claims submitted by appellant were
fraudulent.
On September 28, 1993, the Defense Fraud, Waste, and
Abuse Hotline received an anonymous allegation that claims
submitted by appellant’s company to the Government between
1989 and 1992 were false and forged; that such claims had
resulted in payment by the Government of $15,000 for
services that appellant’s company never had rendered; and
that appellant had deposited the checks paid by the
Government for these fraudulent claims into his personal
checking account. The caller subsequently was identified
as appellant's former wife.
. . . .
[Eventually t]he charges were referred to general
court-martial.
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United States v. Dowty, 48 M.J. 102, 104-05 (C.A.A.F. 1998).
The case was hotly contested from the outset with extensive
interlocutory litigation at the lower court, in United States
District Court, and at this Court. The lower court’s opinion
documents the prior appellate history. 57 M.J. at 708. This
extended appellate litigation resulted in postponing the trial
on the merits. While this case began on May 9, 1996, the
substantive trial on the merits was delayed until early December
1998. This delay was problematic with regard to providing panel
members for the court-martial. In the original convening order
and first modification, the CA had detailed ten members to the
court-martial. Because many of both the original and
substituted panel members had been transferred, new panel
members were needed.
B. The novel panel selection process
The genesis of the present issue is in a routine task
frequently facing the command staff judge advocate - how to
identify a pool of members from which the CA will select the
court-martial panel. Before 1998, the “standard procedure for
selecting members” at the Bureau of Medicine and Surgery (BUMED)
was for department heads to nominate the best qualified officers
from their respective departments. This is similar to the
accepted and traditional subordinate-commander nomination model
that is frequently followed.
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In the summer of 1998 as Appellant’s trial was to continue
on the merits, the Assistant Staff Judge Advocate (ASJA) of
BUMED in his own words “came up with the idea of publishing a
Plan of the Week notice” requesting volunteers to serve as
court-martial members. He took this admittedly “novel approach”
because the BUMED command “had a severe need for a members
pool.” His concern was to obtain members for Appellant’s case
and potentially three other cases in the next several months.
With the approval of the Staff Judge Advocate (SJA) and
other military supervisors, the ASJA presented the following
announcement in the BUMED Plan of the Week for four days, June
20-23, 1998:
3. LEGAL NOTE: MEMBERS NEEDED. Would you like to
serve as a member in a general or special courts-martial in
the greater Washington, DC area? Interested active-duty
military personnel, both officers and enlisted, please
contact [the ASJA] . . . for further information.
The record does not address whether the CA had actual knowledge
of this solicitation for volunteer members, but it does
establish that he did not assume command until June 28, 1998,
several days after the announcement in the BUMED Plan of the
Week.
The lower court’s opinion reports the chain of events that
followed:
Out of approximately 140 officers in BUMED, 50 or so
officers and enlisted personnel responded to the
solicitation. The ASJA provided the interested volunteers
with members’ questionnaires. He received back 47
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United States v. Dowty, No. 03-0152/NA
completed questionnaires. He separated out the enlisted
volunteers, leaving him with 22 officer volunteers. The
ASJA contacted 21 of the 22 officers who volunteered. He
testified that he deleted two volunteers from the nominee
pool due to “concerns” he had “because of their close
relationship with legal” and that it would be therefore
unfair for them to sit on the jury.
The ASJA contacted the remaining 20 volunteers and,
without providing any details, such as the name of the
accused or the amount of time the volunteers might be
required, asked each of them if they would be “available”
to serve on a court-martial during the first week of
December 1998. The ASJA rejected another five volunteers
because they said they were not “available.” Thus, the
ASJA “combed” down the 140 member officer pool at BUMED to
15 qualified and available volunteers. From these 15, the
ASJA nominated nine officers that he believed were best
qualified to serve as members on Appellant’s court-martial.
57 M.J. at 713 (footnotes and citations omitted).
C. The advice the CA
received as he selected the panel
After the ASJA had compiled a list of qualified and
nominated members, he submitted it to the SJA for his review and
finally to the chief of staff who approved it. The ASJA then
forwarded this list of 15 qualified members and 9 nominated
members to the CA. The folder of information submitted to the
CA included the following:
1) The Court Member Questionnaire for each of the 15
nominated members;
2) Two separate documents with each member’s name and a
blank space to the left. On one of these documents the
ASJA indicated by a check mark his nine nominees for the
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United States v. Dowty, No. 03-0152/NA
panel. The other document was substantially a mirror image
of the first except the blank space to the left of every
name was not marked; on this document the CA was to
indicate by his check mark his personal selection of the
panel members; and
3) Written advice to the CA regarding his personally
selecting the members.
This written advice contained this guidance:
As convening authority, you must select personnel
qualified by age, training, length of service, and
judicial temperament; the attached court-martial
questionnaires for each candidate may be useful in
making this determination. I believe that any of the
candidates listed below are acceptable. Please select
up to nine individuals from the list by initialing
each of your choices. If you believe that other
officers should be selected, MED-OOL will solicit
additional members from throughout the command.
The AJSA did not personally brief or discuss further with the CA
the selection of the members. Specifically, the ASJA did not
disclose to the CA that he used a “novel” method to select
potential members, that the list of nominated members consisted
solely of volunteers, or that non-volunteers were specifically
excluded from the pool of potential members.
In selecting the members, the CA signed his name at the
bottom of the page to indicate his selection of nine members.
That document also has a check mark opposite each of the
officers he selected. Eight of the individuals selected by the
CA were individuals that the ASJA had personally recommended.
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United States v. Dowty, No. 03-0152/NA
Although part of the pool of fifteen qualified members, the
ninth individual selected by the CA for the panel was not
personally recommended by the ASJA. The ninth member selected
by the CA was also among the original group of volunteers.
Eventually, the CA signed a convening order amendment that
contained this list of nine officers. Two of the officers
selected as members were lieutenants junior in rank to
Appellant.
At this point, the panel was not set in stone, and there
was another convening order amendment that added four new
officer members. None of these new panel members were
volunteers who responded to the Plan of the Week announcement.
This amendment also deleted the two volunteer members who were
junior in rank to Appellant. As the trial began seven
volunteers remained on the panel.
D. Trial developments related to
challenging the members selection process
At trial the defense moved to strike the panel currently
detailed and to stay the proceedings on the basis that the
members detailed were improperly selected. The focus of
Appellant’s argument was that the systematic exclusion of non-
volunteers was impermissible court “packing.” Appellant
asserted that the CA failed to perform his statutory duty under
Article 25, UCMJ, of personally selecting the members because
the ASJA limited the CA’s pool of members to volunteers and did
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United States v. Dowty, No. 03-0152/NA
not inform the CA of his developing the panel pool on this
basis. Appellant asserted that the ASJA’s limiting the panel
pool to volunteers impermissibly allowed the members to “choose
themselves,” allowed volunteers to possibly bring an agenda to
the court-martial, and excluded otherwise qualified non-
volunteer members.
In support of his position, Appellant filed with the Court
a 14 page Motion For Appropriate Relief with detailed factual
statements and 19 Exhibits that included all the documents that
were submitted to the CA. In Appellate Exhibit XXXIII, the
defense presented factual information that the defense had
obtained through interviews of three witnesses including the CA,
SJA, and ASJA. In the motion, the defense requested the Court
to consider both the “statement of facts presented herein which
will be supported by the testimony of [the SJA, ASJA, and CA]”
and the 19 exhibits. Responding to this request at the outset
of litigating this motion, the judge ruled, without objection
from the parties, that he would consider Appellate Exhibit
XXXIII and the attachments in ruling on the motion. The judge
then afforded the defense the opportunity to present “other
evidence.”
While the defense did call witnesses including the SJA and
ASJA, neither the defense nor the prosecution called the CA to
testify. However, the CA’s information regarding his selection
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United States v. Dowty, No. 03-0152/NA
of the panel was already before the judge in the detailed
defense factual summary that the judge had previously ruled he
would consider in ruling on the defense motion. In its motion,
the defense established that the CA had stated “that despite
receiving a file [that included the list of nine members
recommended by the ASJA], he did not review the submitted list
from the [ASJA], and instead . . . relied solely upon the 15
members (sic) questionnaires in making his decision.” The
defense also represented that:
[the CA] explained that one of the two members lists which
have been produced in this matter was marked by him as to
those members which he chose. It bears his signature and
is attached hereto as Exhibit 2. He received the
recommendation list, Exhibit 1, but he did know who had
prepared it, nor did he review it until after he had made
his choices. When he received the package related to this
panel, he reviewed the member questionnaires presented to
him thoroughly. He does not recall speaking to anyone
about this panel.
In denying the defense motion, the military judge stated in
part,
[I]n your own evidence you’ve both raised the issue and
defeated it. I think that the evidence indicates that the
convening authority made personal selections of the members
in this case and that he did so understanding that he could
choose from the entirety of his command in the process.
The technique which was employed in soliciting volunteers,
both novel and potentially troubling . . . has been
overcome by the evidence that clearly indicates . . . both
personal selection of the members and consideration of the
individuals who went beyond this list.
When the court-martial was assembled, there were ten
members, six of whom were “volunteers.” The CA had excused one
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United States v. Dowty, No. 03-0152/NA
“volunteer” for an unexplained reason. When the trial proceeded
to voir dire, the military judge revisited the issue of members
volunteering by asking the entire panel, “Did any of you
volunteer to serve as a member at a court-martial?” Three of
the six original volunteers gave an affirmative response. They
all stated that they did not know this would be the case they
would be sitting on when they volunteered. Also the judge
inquired of each member his reason for volunteering. One member
stated simply, “Sir, it was an opportunity to take part in a
unique aspect of the justice system in the military. I’ve
always wanted to do that.” The other members stated they just
wanted to provide help where it was needed or “just offered.”
We also note that in voir dire one member, who was not among the
original 15 nominated volunteers and was later added to the
panel in an amendment to the convening order, disclosed that she
volunteered for reasons unrelated to the solicitation for court
members in the Plan of the Week. She explained that she had
volunteered “for the experience” of court-martial participation.
During individual voir dire, civilian defense counsel
questioned the other three members who did not indicate that
they volunteered. One member did not recall volunteering,
another did not remember the request for members in the Plan of
the Week, and the final member stated that he did not understand
the earlier question and admitted that he was also a volunteer.
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Group or individual voir dire also established that the four new
panel members were not volunteers.
With this information, the defense counsel did not
challenge any member because the member volunteered for service
on the panel. The judge granted one defense causal challenge to
a volunteer member on grounds that had nothing to do with the
member’s status as a volunteer. The judge also granted one
peremptory challenge made by the prosecution and one made by the
defense, thereby removing two more “volunteers” from the panel.
As the case began on the merits, only three volunteer members
who responded to the Plan of the Week solicitation were on the
seven member panel.
E. Appellate challenge related to
the members selection process
At the lower court, Appellant repeated the challenge to the
panel selection that he originally presented to the military
judge, but the lower court rejected his arguments. We note that
the lower court opinion incorrectly states only two volunteers
actually served on the panel when, in fact, there were three.
57 M.J. at 715. But this factual error does not otherwise
affect the lower court’s analysis or conclusions. Although the
lower court agreed with the military judge that the panel
selection process was “potentially troubling,” it found that
“[t]here was no effort to exclude any particular group of
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United States v. Dowty, No. 03-0152/NA
potential members.” Id. at 714-15. Expressly rejecting
Appellant’s argument that non-volunteers are a discrete group
that cannot be excluded without violating Appellant’s Article
25, UCMJ rights, the lower court found that the CA personally
selected the members. Id. at 714.
Before this Court, Appellant again asserts a violation of
Article 25, UCMJ in the ASJA’s method of soliciting volunteers
to select a members pool and repeats his trial and prior
appellate arguments. However, for the first time, Appellant
expands his attack on the members selection process by arguing
that the CA did not select members for Appellant’s court-martial
based on the explicit statutory requirements of Article
25(d)(2), UCMJ. Appellant asserts that the ASJA advised the CA
of only four of the Article 25(d)(2) requirements for selecting
members: age, training, length of service, and judicial
temperament. Appellant claims the ASJA did not advise the CA of
the statutory requirements of “experience” and “education,”
thereby preventing a properly informed CA from selecting the
members.
The Government asserts that the CA complied with Article
25(d)(2), UCMJ, and properly detailed members to Appellant’s
court-martial. The Government asserts that the nomination
procedure here was a permissible preliminary screening of
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United States v. Dowty, No. 03-0152/NA
available members. The Government also asserts that there was
no evidence that the CA did not personally select the members.
II. DISCUSSION
A. Evaluation of the novel panel selection process
Article I, Section 8, Clause 14, of the United States
Constitution empowers the Congress “To make Rules for the
Government and Regulation of the land and naval Forces[.]”
Legislating under the authority of this provision, Congress has
established the court-martial as the institution to provide
military justice to servicemembers. This Court has stated that
“the Sixth Amendment right to trial by jury with accompanying
considerations of constitutional means by which juries may be
selected has no application to the appointment of members of
courts-martial.” United States v. Kemp, 22 C.M.A. 152, 154, 46
C.M.R. 152, 154 (1973). A servicemember has no right to have a
court-martial be a jury of peers, a representative cross-section
of the community, or randomly chosen. Ex parte Quirin, 317 U.S.
1, 39-41 (1942); United States v. Tulloch, 47 M.J. 283, 285
(C.A.A.F. 1997); United States v. Smith, 27 M.J. 242, 248
(C.M.A. 1988). “But, the military defendant does have a right
to members who are fair and impartial.” United States v.
Roland, 50 M.J. 66, 68 (C.A.A.F. 1999). This right “is the
cornerstone of the military justice system.” United States v.
Hilow, 32 M.J. 439, 442 (C.M.A. 1991).
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Actual appointment of fair and impartial members is the
duty and responsibility of the CA. A “convening authority’s
power to appoint a court-martial is one accompanying the
position of command and may not be delegated.” United States v.
Ryan, 5 M.J. 97, 100 (C.M.A. 1978). Regarding this non-
delegable duty of the CA, Article 25(d)(2) provides:
When convening a court-martial, the convening authority
shall detail as members thereof such members of the armed
forces as, in his opinion, are best qualified for the duty
by reason of age, education, training, experience, length
of service, and judicial temperament. No member of an
armed force is eligible to serve as a member of a general
or special court-martial when he is the accuser or a
witness for the prosecution or has acted as investigating
officer or as counsel in the same case.
Simply stated, this statute mandates the selection of members
who are “best qualified.” See United States v. White, 48 M.J.
251, 254 (C.A.A.F. 1998). It is blackletter law that the CA
must personally select the court-martial members. See United
States v. Allen, 5 C.M.A. 626, 18 C.M.R. 250 (1955). However,
we have also stated that this is not the CA’s solitary endeavor:
[W]e have recognized that the convening authority, while
charged with the personal responsibility for the selection
of court members, must have assistance in the preparation
of a panel from which to choose those members. In order to
carry out his function under Article 25, he must
necessarily rely on his staff or subordinate commanders for
the compilation of some eligible names.
Kemp, 22 C.M.A. at 155, 46 C.M.R. at 155; see also United States
v. Benedict, 55 M.J. 451, 455 (C.A.A.F. 2001)(“This Court has
held in the past that the ‘convening authority may rely on his
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United States v. Dowty, No. 03-0152/NA
[or her] staff to nominate court members.’”)). Senior Judge Cox
gave wise advice for everyone involved in providing court-
martial members:
Those responsible for nominating court members should
reflect upon the importance of this task. It is a solemn
and awesome responsibility and not one to be taken lightly
or frivolously. . . . A fair and impartial court-martial
is the most fundamental protection that an accused
servicemember has from unfounded or unprovable charges.
There is a duty to nominate only fair and impartial
members.
Smith, 27 M.J. at 252 (Cox, J., concurring).
In a long line of cases, we have addressed the role of
subordinates, often the staff judge advocate, in performing a
preliminarily screening of members. In so doing, this Court has
repeatedly declared its vigilance in guaranteeing the judicial
integrity of a court-martial and in preventing improper
selection of court members. See Roland, 50 M.J. at 68; Hilow,
32 M.J. at 442.
Several cases provide guidance as to what cannot be done in
screening members for the CA’s consideration of appointment to a
court-martial. In United State v. Daigle, 1 M.J. 139 (C.M.A.
1975) we rejected a staff judge advocate’s process to obtain
nominees from subordinate commanders solely on the basis of
their rank and without consideration of the Article 25(b)(2),
UCMJ criteria. See also United States v. Kirkland, 53 M.J. 22
(C.A.A.F. 2000)(holding that exclusion of potentially qualified
members below the grade of E-7 was improper); cf. United States
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United States v. Dowty, No. 03-0152/NA
v. Yager, 7 M.J. 171, 173 (C.M.A. 1979)(permitting exclusion of
soldiers in pay grades E-1 and E-2 as presumptively unqualified
under Article 25(d)). In Hilow, we held that the deliberate
stacking of the pool of potential members was improper. 32 M.J.
at 442. We found it impermissible for the division deputy
adjutant general to submit nominees to the staff judge advocate
who were supporters of a command policy of hard discipline. Id.
at 440 (court packing may occur if a subordinate packs the list
of nominees presented to the convening authority); see also
United States v. McClain, 22 M.J. 124 (C.M.A. 1986)(rejecting
systematic exclusion of junior officers and enlisted members in
pay grade E-6 and below to avoid light sentences).
Other cases are illustrative as to what subordinates can do
in generating a pool of potential court-marital members to be
submitted to the CA. In Kemp, 22 C.M.A. 152, 46 C.M.R. 152, we
approved the initial compiling of the pool of potential nominees
by random selection from the master personnel file. See also
United States v. Crawford, 15 C.M.A. 31, 35 C.M.R. 3, 7
(1964)(approving selection of members following a random
selection of a prospective member list). In United States v.
Pearson, 15 C.M.A. 63, 35 C.M.R. 35 (1964), this Court found
nothing to cast doubt on the propriety of a selection process
that preliminarily screened enlisted court members senior in
grade to the accused as this limitation is required by Article
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25, UCMJ. In White, this Court permitted group commanders to
submit nominees who were the “best and the brightest” officers,
thereby ultimately satisfying the CA’s personal desire for more
commanders and their deputies rather than non-commanders on the
court-martial panel. 48 M.J. at 253.
Importantly in White, this Court reaffirmed the importance
of inclusion in identifying panel members.
Thus, a convening authority ‘is free to require
representativeness in his court-martial panels and to
insist that no important segment of the military community
- such as blacks, Hispanics, or women - be excluded from
service on court-martial panels,’ so long as he or she does
not systemically exclude a class or group of qualified
candidates from court-martial membership.
Id. at 254 (quoting Smith, 27 M.J. at 249). See also Crawford,
15 C.M.A. at 31, 35 C.M.R. at 3 (stating that deliberate
selection of minority was proper inclusion to insure fair
representation). However, a desire for representativeness
cannot be a subterfuge to pack the panel. See Smith, 27 M.J.
242 (rejecting the selection of female members to help secure a
particular outcome).
From these cases, we identify three factors that are most
helpful in evaluating the propriety of any screening of
servicemembers for eventual consideration by the CA for court-
martial service. But at the outset, we observe that these
factors are not exhaustive, nor a checklist, but merely a
starting point for evaluating a challenge alleging an
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United States v. Dowty, No. 03-0152/NA
impermissible members selection process. Indeed, we may
conclude, as we do in this case, that a method of members
selection that does not implicate any of these three factors may
still be impermissible and erroneous.
First, we will not tolerate an improper motive to pack the
member pool. See Hilow, 32 M.J. at 440; Smith, 27 M.J. at 249-
50. Second, systemic exclusion of otherwise qualified potential
members based on an impermissible variable such as rank is
improper. See Kirkland, 53 M.J. 23; Daigle, 1 M.J. 139. Third,
this Court will be deferential to good faith attempts to be
inclusive and to require representativeness so that court-
martial service is open to all segments of the military
community. See White, 48 M.J. at 254; Crawford, 15 C.M.A. at
31, 35 C.M.R. at 3.
In applying these factors to the present case, we view the
issue of impermissible screening of the panel pool as one that
invites de novo review. See Kirkland, 53 M.J. at 24 (“Whether a
court-martial panel was selected free from systematic exclusion
is a question of law which we review de novo.”). However, we
are bound by the military judge’s findings of fact unless they
are “clearly erroneous.” Benedict, 55 M.J. at 454. Finally,
“The defense shoulders the burden of establishing the improper
exclusion of qualified personnel from the selection process.”
Kirkland, 53 M.J. at 24 (citing Roland, 50 M.J. at 69). “Once
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United States v. Dowty, No. 03-0152/NA
the defense establishes such exclusion, the Government must show
by competent evidence that no impropriety occurred when
selecting appellant’s court-martial members.” Id.
Applying that framework here, we conclude that Appellant
has not met his burden of establishing the improper exclusion,
with an improper motive, of qualified personnel from the
selection process. Although Appellant attempted to establish
that the pool was selected for his court-martial with an
improper purpose or intention to “stack” the panel, the record
belies this assertion. The ASJA explained in detail that his
reason for soliciting volunteers was to generate a pool of
members that would be available to serve in four courts-martial.
The ASJA’s action of identifying potential enlisted members who
were ineligible to serve on Appellant’s court-martial
corroborates the ASJA’s statement that he was concerned with
obtaining a pool that could serve in other cases. Moreover the
ASJA testified that he made every effort to ensure that the
panel members in the pool were impartial and fair. Importantly,
he discussed his method of obtaining the pool of volunteers with
the SJA and military seniors and explained it to an SJA at a
different command. The transparency of the ASJA seeking
volunteer members suggests that he had no improper motive in his
attempt to develop a pool of potential members. Finally, the
ASJA advised the CA that he had the option to select other
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officers from throughout the command, and other members would be
solicited if he requested them. On these facts, the issue of
unlawful court stacking was not raised. See United States v.
Upshaw, 49 M.J. 111 (C.A.A.F. 1998).
The military judge and the lower court both correctly
concluded that there was not an exclusion with an improper
motive of a class of qualified servicemembers from possible
consideration by the CA. There was no exclusion based on rank,
race, or gender. None of the exclusions of servicemembers in
other cases that caused this Court to reject preliminary
screening of members is present in this case.
We acknowledge that non-volunteers were excluded from the
initial members pool. But we agree with the military judge and
the lower court who rejected “Appellant’s argument that non-
volunteers are a discrete group that cannot be excluded without
violating his substantial rights.” Dowty, 57 M.J. at 714.
Moreover, Appellant has made no showing that this result
directly impacted the fabric of the panel pool. Although
Appellant asserts generally that volunteers may have brought
their own agenda to the court-martial, the military judge
conducted voir dire of each member to establish the
circumstances of the member volunteering. The reasons for
volunteering given by every panel member establish only good
intentions of each member and no basis to question their motive.
21
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This conclusion is supported by defense counsel not
challenging any individual volunteer for reasons related to
volunteering for the panel service. In fact, four of the seven
members who actually served in this case were not volunteers.
Finally, we need not speculate as to whether the
solicitation of volunteers was an attempt to improve the
representativeness of the court-martial service. The ASJA never
offered this justification for his action. So this factor is
not relevant to our inquiry.
Notwithstanding our finding none of the impermissible
screening of potential members that we have found in past cases,
we conclude that it was error to inject into the panel selection
process the irrelevant variable of a servicemember volunteering
to be a member, and we reject the “novel and potentially
troubling” method used here to identify volunteer members for
the panel pool. This conclusion is consistent with the current
federal practice.
Article 36, UCMJ, 10 U.S.C § 836 (2000), delegates to the
President the authority to prescribe “[p]retrial, trial, and
post-trial procedures, including modes of proof,” in courts-
martial, applying insofar as practicable “the principles of law
and the rules of evidence generally recognized in the trial of
criminal cases in the United States district courts,” so long as
not inconsistent with the UCMJ. “The implication is that
22
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Congress intended that, to the extent ‘practicable,’ trial by
court-martial should resemble a criminal trial in a federal
district court.” United States v. Valigura, 54 M.J. 187, 191
(C.A.A.F. 2000). Notwithstanding the significant structural
difference between court-martial panels and civilian juries,
this Court has applied this Article 36 mandate to issues
relating to selecting panel members. See United States v.
Witham, 47 M.J. 297, 298 (C.A.A.F. 1997) (applying to courts-
martial the federal rule that a criminal defendant may not
exercise a peremptory challenge on the basis of race or gender).
Applying this precedent to the present case, we now consider the
“federal rule” relating to service of volunteers as jurors.
That “federal rule” is simply that the use of volunteers
“violate[s] both the letter and spirit of the Jury Selection and
Service Act of 1968, 28 U.S.C. §§ 1861-1869 . . . and its
requirement of random selection.” United States v. Kennedy, 548
F.2d 608, 609 (5th Cir. 1977). The Fifth Circuit could not be
more clear in its explicit rejection of using volunteers as
jurors. “We condemn the practice, note its apparent demise, and
put all districts under our jurisdiction on notice that its
resurrection shall not be brooked.” Id.
The statute required the clerk to “draw at random from the
qualified jury wheel [also based on a random drawing from voter
registration list] . . . names of persons . . . required for . .
23
United States v. Dowty, No. 03-0152/NA
. jury panels.” 28 U.S.C. § 1866(a). In Kennedy, the jury
clerk, pursuant to standing authorization of the chief judge of
the district, obtained volunteers from the list of persons who
had completed jury service in the prior term. Weighing this
violation against the goal of the statute to achieve random
selection from a fair cross section of the community, the court
found that this was a “substantial failure to comply” with the
statute. Id. at 611-12. Ultimately, the Court granted no
relief as the Appellant failed to properly challenge the jury
selection by the method required in the statute. Id. at 612-13.
The linchpin of the Kennedy decision is that Congress
designated a procedure to develop a jury panel and the use of
volunteers was “a substantial variable, not contemplated by the
Act’s few, narrow categories of qualifications, exemptions, and
excuses, [that] has confounded the selection process.” Id. at
612. This reasoning applies to the present case.
Congress in Article 25(b)(2) also established a procedure
to obtain members for a court-martial. In the present case, the
use of volunteers was also an irrelevant variable injected into
the selection of the panel pool. We embrace the approach of the
Court of Appeals in Kennedy and will “not speculate as to what
sort of biases will be reflected in a jury chosen on the basis
of its members’ willingness to depart from their daily business
and serve as jurors.” Id. We, persuaded by the logic and
24
United States v. Dowty, No. 03-0152/NA
authority of the federal rule as stated in Kennedy, simply
condemn the practice of soliciting only volunteers for the panel
pool.
B. Evaluation of prejudice from the improper
preliminary screening of panel members
Our rejection of this practice requires this Court to
evaluate the impact of this error in the context of the military
justice system. See Daigle, 1 M.J. at 139. However, this Court
has not clearly stated the allocation of the burden regarding
the demonstration of prejudice in circumstances like the present
case that involved the improper use of command authority
preliminarily to screen members but did not implicate the issue
of command influence. Compare id. (testing for prejudice from
improper selection of court members but not clearly allocating
the prejudice burden) and Roland, 50 M.J. at 69 (“Once the
defense comes forward and shows an improper selection, the
burden is on the Government to demonstrate that no impropriety
occurred.”) with Upshaw, 49 M.J. at 113 (allocating to the
Appellant the burden “[w]here administrative mistakes occur in
detailing court members”). In the present case, error in
preliminarily screening the members was not merely an
“administrative mistake.” As the error was more egregious, we
conclude that the Government has the burden to demonstrate that
the error did not “materially prejudice the substantial rights
25
United States v. Dowty, No. 03-0152/NA
of the accused.” See Article 59(a), UCMJ, 10 U.S.C. § 859(a)
(2000). In so doing and evaluating the prejudice in this case,
we focus on the motive of those involved in the preliminary
screening of panel members, the nature of the preliminary
screening variable of volunteerism, and its impact on the
selection of the members.
Importantly, as we have previously stated, there is no
showing of an improper motive by anyone involved in the
nomination or selection of the members. See Upshaw, 49 M.J. at
113 (stating that “where the convening authority’s motive is
benign, systematic inclusion or exclusion may not be improper”).
Next, we observe that the preliminary screening variable of
volunteerism is irrelevant. There is no showing that this
variable operated to exclude a discernable group or to diminish
the representative nature of the pool. See Kennedy, 548 F.2d at
614. Appellant has failed to show how non-volunteers were
different as a group than volunteers or how any of the three
individual volunteers in this case was different from the four
non-volunteers. Also it is clear that the use of volunteers in
the military justice case was not as offensive as their use to
select a civilian jury. The policy concern for a random
selection and a fair cross section essential in selecting a
civilian jury, is not applicable in the military justice system.
See Tulloch, 47 M.J. at 285.
26
United States v. Dowty, No. 03-0152/NA
The focus of our concern is therefore on whether the use of
volunteers thwarted the congressional procedure in Article
25(b)(2) for selection of “best qualified” members. To evaluate
this impact, we must now examine two dimensions of the panel
selection in this case - the advice to the CA regarding his
selection of the members and the actual process of the CA
personally selecting the members on this panel.
1. The advice to the CA as
he selected the members of the panel
In Article 25, Congress has provided members of the armed
forces with a valuable protection by requiring that the CA
personally select those members of the armed forces "best
qualified" to serve as court members by reason of judicial
temperament and related statutory criteria. We now address
whether this protection was honored in this case.
In Hilow, we emphasized that in discharging his Article 25
powers, the CA must be “fully informed of any attempts to
‘stack’ the court-martial panel or any other matters which may
cast doubt on the fairness of the proceedings.” 32 M.J. at 442.
While we do not find any attempt to stack the court-martial in
this case, we do perceive the unorthodox method to obtain the
panel pool as a matter which was so unusual that it was
problematic and arguably raised questions regarding the
appearance of fairness of the panel. Therefore, it was a matter
27
United States v. Dowty, No. 03-0152/NA
about which the ASJA should have advised the CA before he
selected the members.
In light of this failure to advise the CA, we have elected
to address the issue Appellant asserts for the first time at
this Court, that the ASJA’s advice regarding the Article
25(b)(2) statutory criteria for the CA to select members was
also deficient.
It is well settled that “[o]rdinarily, an objection to the
method of selection of the triers of the facts must be made
before trial.” Crawford, 15 C.M.A. at 33, 35 C.M.R. at 5.
Appellant’s failure to make this precise objection either at
trial or before the lower court gives us pause, but in the past
we have “pass[ed] over the procedural deficiency to reach the
substance of the issue.” Id. at 34, 35 C.M.R. at 6. The
unusual circumstances surrounding the selection of the members
invite us in this case to respond to Appellant’s complaint.
It is not disputed that the ASJA’s advice to the CA was
deficient. See Article 25(d)(2), UCMJ. The AJSA’s written
advice identified these four factors for the CA to consider in
selecting court members: age, training, length of service, and
judicial temperament. This advice omitted the statutory factors
of experience and education.
However, this error did not taint the CA’s personal
selection of the members. The facts as found by the military
28
United States v. Dowty, No. 03-0152/NA
judge demonstrate the CA’s use of the member questionnaires,
which included extensive information regarding education and
experience of the potential members when he selected the
members. The record supports these facts. The CA stated that
he reviewed the member questionnaires in making his selection.
This detailed information on each member addressed both the
factors of experience and education.
Each questionnaire presented the military experience of the
member for the “last 10 years plus any significant or unusual
billets” and experience in the military justice system.
Appellate Exhibit XXXIII at Court Member Questionnaire. Also,
each member questionnaire presented a detailed summary of the
educational background of each member including from high school
through graduate education, degrees, fields of study, and legal
education and courses. Appellate Exhibit XXXIII at Court Member
Questionnaire. In this case, the CA expressly stated that he
considered the questionnaires, and the questionnaires presented
this detailed information of each member’s experience and
education. In our view, the combination of these circumstances
sufficiently established that the CA applied the criteria of
Article 25, UCMJ, when he selected these members and removed any
claim of prejudice attendant to the omission of the experience
and education criteria from the SJA advice.
29
United States v. Dowty, No. 03-0152/NA
2. The CA’s
personal selection of the members
Notwithstanding the previously discussed issues relating to
the identification of the members pool and the deficient advice
to the CA, we are satisfied that the CA personally selected the
members of Appellant’s court-martial. Appellant does not
challenge that the CA personally selected a majority of the
members (four of the seven) who were not in the volunteer pool
and that he added by the final modification of the convening
order. The sole issue is whether the CA personally selected the
three volunteers who eventually served as members.
The judge in ruling on this issue was right on the mark
when he stated that the defense’s proof in support of the motion
challenging the selection process “both raised the issue and
defeated it.” The judge was correct that it was the defense
evidence that unequivocally established the CA personally
selected the members.
In Appellate Exhibit XXXIII, which the military judge
admitted as evidence on the motion, the defense presented an
unrebutted explanation of the CA as to how he personally
selected the panel members. In this exhibit, the CA explained
that he relied “solely upon the 15 member questionnaires in
making his decision.” Other statements of the CA in this
defense exhibit provide further reassurances that the CA’s
30
United States v. Dowty, No. 03-0152/NA
selection of the members was free of any improper influence by
the ASJA. The CA stated that he selected the panel members and
did not review the list of nominations submitted by the ASJA
until after he had selected the panel. He also stated that he
did not even know who had prepared the list of nominees. The CA
did not select one of the ASJA’s nominees and in fact selected a
member from the panel pool that the ASJA had not selected. This
further corroborates the CA’s assertion of his independent
selection of the members. Finally, and most importantly, the CA
stated that he marked Exhibit 2 to indicate his selection of
members and personally signed it. This document bears his
signature. The CA later also personally signed the convening
order modification reflecting his selection of these members.
In light of these statements of the CA, placed in the
record by the defense, establishing that the CA personally
selected the members, it was not necessary that he personally
appear as a witness at the court-martial to explain his actions.
We conclude that the military judge’s finding of fact that the
CA personally selected the panel is not clearly erroneous. See
Benedict, 55 M.J. at 455 (concluding that testimony of convening
authority and personal signature on convening order support
finding of the military judge that convening authority
personally selected members).
31
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C. Summary
We hold that under the unique facts of this case, the CA
personally selected the panel and applied the criteria of
Article 25(d), thereby curing any error arising from screening
of the panel pool using the impermissible variable of volunteer.
The Government has carried its burden to demonstrate no
prejudice from this error. This is not to say that the
convening authority’s proper and personal selection of the
members can cure all impermissible screening. See Hilow, 32
M.J. at 442 (“[W]e have never held that the impact of [command
subordinates’] improper assistance can be ignored solely on the
basis of the CA’s official duty to personally select the members
in accordance with the criteria of Article 25(d)(2).”).
Previously we have addressed separately each of the
Appellant’s objections to the selection and service of volunteer
members on the panel and to the erroneous ASJA advice to the CA.
However, we have also considered their collective effect and
find that there is no appearance of unfairness arising from the
service of any of the volunteer members in this case. See
United States v. Marsh, 21 M.J. 445 (C.M.A. 1986).
The amicus in this case identifies several issues relating
to the process of members selection and the involvement of the
CA and the SJA in selecting members. The amicus also invites
this Court’s consideration of these issues in light of this
32
United States v. Dowty, No. 03-0152/NA
Court’s supervisory role as the highest court in the military
justice system. See Eugene R. Fidell, Guide to the Rules of
Practice and Procedure for the United States Court of Appeals
for the Armed Forces 32-34 (11th ed. 2003)(collected cases where
this Court invited rulemaking action or consideration by
Congress when it has identified needed improvements to the
military justice system).
The amicus position reflects longstanding expressions of
concern regarding the present process for selecting members.
See, e.g., Smith, 27 M.J. at 252 (Cox, J., concurring)(calling
the method of the CA selecting members “the most vulnerable
aspect of the court-martial system; the easiest for critics to
attack”). See also Honorable Walter T. Cox, III et al., Report
of the Commission on the 50th Anniversary of the Uniform Code of
Military Justice (May 2001)(recommending modifying the role of
the convening authority in selecting court-martial members); 2
Francis A. Gilligan & Fredric I. Lederer, Court-Martial
Procedure 14, ¶ 15-3100 (2d ed. 1991)(“Arguably, the most
critical and least necessary vestige of the historical origins
of the military criminal legal system is the personal
appointment of the members by the convening authority.”);
Kenneth J. Hodson, Military Justice: Abolish or Change?, 22 Kan.
L. Rev. 31 (1973), reprinted in Mil. L. Rev. Bicent. Issue 577,
605 (1975)(proposing that “commanders, at all levels, be
33
United States v. Dowty, No. 03-0152/NA
completely relieved of the responsibility of exercising any
function related to courts-martial except, acting through their
legal advisors, to file charge with a court for trial, to
prosecute, and, in the event of conviction, to exercise
executive clemency by restoring the accused to duty.”).
But long ago regarding this matter of members selection we
stated, “[t]his Court sits as a judicial body which must take
the law as it finds it, and that any substitution of a new
system of court selection must come from the Congress . . . .”
Kemp, 22 C.M.A. at 154, 46 C.M.R. at 154. Today, we heed that
wise admonition and, after applying the law to the facts,
conclude simply there was error in this “novel” attempt to
solicit volunteers to serve as court members. We, however, also
find no material prejudice to Appellant’s substantial rights.
DECISION
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is affirmed.
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United States v. Dowty, 03-0152/NA
EFFRON, Judge (dissenting):
As the Supreme Court has noted, “trial by jury in
criminal cases is fundamental to the American scheme of
justice.” Duncan v. Louisiana, 391 U.S. 145, 149 (1968).
See also Taylor v. Louisiana, 419 U.S. 522 (1975)
(requiring jury selection from a random cross-section of
the community); Baldwin v. New York, 399 U.S. 66 (1970)
(requiring trial by jury in all criminal cases when the
sentence may include confinement in excess of 6 months).
Congress has determined that the disciplinary needs of
the armed forces require use of a different procedure in
courts-martial. Under the Uniform Code of Military Justice
[hereinafter UCMJ], there is no right to trial by jury.
The convening authority - the commander who exercises
prosecutorial discretion - selects the court-martial panel.
See Article 25, UCMJ, 10 U.S.C. § 825 (2000); Rules for
Court-Martial 407, 503; United States v. Smith, 27 M.J. 242
(C.M.A. 1988).
Congress, however, did not provide the convening
authority with unfettered discretion in selecting the panel
that would decide the fate of an accused service member.
As the majority opinion notes, a service member has the
right to a panel that is fair and impartial. ___ M.J. (15)
United States v. Dowty, 03-0152/NA
(citing United States v. Roland, 50 M.J. 66 (C.A.A.F.
1999)). The convening authority must personally select the
members of the panel according to specific statutory
criteria, a function that may not be delegated. ___ M.J.
(16-17)(citing United States v. Ryan, 5 M.J. 97 (C.M.A.
1978); Article 25(d)(2), UCMJ). To the extent that a
convening authority relies on staff assistance in selecting
a court-martial panel, the staff cannot narrow the pool
through criteria that are not within the qualifications
established by Article 25. See ___ M.J. (27-28).
In the present case, the assistant staff judge
advocate narrowed the pool to 22 potential officer members
without applying the qualifications of Article 25. The
sole criterion was self-qualification by volunteers. The
lead opinion agrees that this process was impermissible,
but concludes that the error was not prejudicial.
In testing for prejudice, the lead opinion
appropriately focuses on whether the use of volunteers
thwarted the congressional requirement for selection of the
“best qualified” members under Article 25(d)(2). There
were three critical errors in this case. First, the staff
did not apply the criteria in Article 25 in establishing a
potential pool of members. Second, the assistant staff
judge advocate did not advise the convening authority that
2
United States v. Dowty, 03-0152/NA
the staff had deviated from the standard use of Article 25
criteria, but instead had relied on volunteers. Third, the
assistant staff judge advocate advised the convening
authority to use four criteria when selecting the panel,
advice that omitted two of the statutory criteria in
Article 25 - experience and education.
The lead opinion concludes that these errors were not
prejudicial because the panel was selected by an
experienced convening authority who personally reviewed the
questionnaires of the potential members that had been
selected by his staff, which included information pertinent
to the experience and education of the potential panel
members. I respectfully disagree.
To the extent that this convening authority had
experience in the selection of panel members, it would have
been reasonable for him to rely on his staff to apply the
criteria set forth in Article 25 in narrowing the pool.
They did not. Moreover, it would have been reasonable for
him to rely on the assistant staff judge advocate to advise
him correctly on the criteria he was required to apply in
selecting the panel. That advice, however, was defective
because it omitted one-third of the statutory criteria.
Although the convening authority may have used benign
criteria in shaping the panel, he did so applying defective
3
United States v. Dowty, 03-0152/NA
standards to a pool that had been impermissibly narrowed by
his staff.
In short, we have a flawed process that produced
multiple felony convictions. We have a criminal record
that not only was imposed without a trial by jury, but
through a process that failed to apply the procedures
established by Congress in lieu of trial by jury. These
errors were compounded by the fact that the staff failed to
inform the convening authority that they had used a deviant
procedure to narrow the pool, and by the staff’s erroneous
advice regarding the criteria that the convening authority
was required to apply under Article 25. Under these
circumstances, I respectfully dissent.
4