The Journal of The DuPage County Bar Association

Back Issues > Vol. 20 (2007-08)

Military Court Member Selection Process: 
Truly A ‘Volunteer’ Force

by Charles Leen

It may be true that members of our Armed Forces do not have a right to trial by a jury comprised of members selected from the civilian community.1 However, military servicemembers do have an explicit right to a jury trial composed of members who are "fair and impartial," regardless of the manner in which they are selected.2 With this right to a "fair and impartial jury," servicemembers on trial place their judicial fates in the hands of their fellow service men and women with the faith that they will receive justice as accorded by the Constitution and the Uniform Code of Military Justice ("UCMJ"). However, it is this idea of a ‘fair and impartial’ jury that has become a lightning rod for critics of the jury selection process articulated by the UCMJ. Commentators, both civilian and in uniform, look at the current UCMJ jury selection process as arbitrary, preconditioned and dangerously susceptible to corruption.3 This comment will focus on the military jury selection process, in relation to ‘volunteer’ jurists deciding United States v. Dowty, 60 M.J. 163 (C.A.A.F. 2004), in order to discuss only one of the manifold UCMJ jury member selection issues facing Congress and the military judiciary.

To begin, it is important to highlight the major differences between a civilian jury selection process and the selection of a military panel for court-martial under the UCMJ. Generally, in a federal court under civilian jurisdiction, a jury is selected at random using voting registration lists, driver’s license records, telephone directories and other similar aids.4 This jury is meant to represent a ‘fair cross section’ of a particular jurisdiction where the case is to be tried.5

However, under the UCMJ Article 25(d), 10 U.S.C.S. § 825(d), jury members are to be selected from a pool of servicemembers available to the command where a particular court-martial proceeding is to be held. The Command Authority ("CA"), a licensed and sworn Judge Advocate General ("JAG") officer, uses the criteria set forth in Article 25(d) of the UCMJ in this selection process. Article 25(d)(2) states that jury panel members should be selected on a "best qualified" basis, examining "age, education, training, ex-perience, length of service, and judicial temperament."6 Article 25(d)(1) further provides that a servicemember defendant normally should not be tried by a panel member who is his or her junior in rank.7 Notably, Article 25 does not set forth military grade or command status as a criteria for selection.8 From this ambiguous, and seemingly arbitrary, language of Article 25(d), many issues involving the selection of panel members for courts-martial have been openly disputed by com-mentators. For example, military panels have been criticized for "stacking" female jurors in sexual assault cases in order to achieve a harsher sentence.9 Jury panel decisions have been overturned for purposely excluding panel mem-bers because of race.10 And, as this comment addresses, court-martial decisions have been contested for voluntary recruitment practices relating to jury member selection under Article 25.11 This list is not exhaustive of the issues which currently haunt members of the military judiciary. It is, however, illustrative of the need for further review of the jury member selection process in today’s military.

In United States v. Dowty, an officer of the Medical Service Corps of the Navy, while employed at the National Naval Medical Center – Bethesda, MD ("Bethesda"), began a medical supply service during his off-time, which purportedly brought false expense claims to the command for services that were never rendered.12 It was eventually shown that the Defendant, Thomas Dowty, did indeed commit fraud while filing false claims with the command. Id. However, the issue raised on appeal concerned the process through which the CA chose the 7-member panel who eventually decided Dowty’s fate. The command JAG officer, attemp-ting to assemble a pool of possible panel members for this case and three others, decided to place a command note in the Plan of the Week (weekly required reading by every member of the command).13 The note read:

"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."14

As a result of this "classified-ad" approach to eliciting a potential venire, approximately 50 officers, out of 140 available at Bethesda, responded to the inquiry.15 Of those 50 officers, 15 were eventually chosen for review by Bethesda’s CA for a final empanelment decision based upon the "best qualified" criteria laid out in Art. 25(d). Id. The CA, through both selection and deletion, eventually placed 3 of the original 50 volunteers on Dowty’s 7-member panel.16 The presence of volunteer jurists then became the anchor of the defense’s appeal from the decision convicting Mr. Dowty.

On appeal, the appellate court found that no prejudice was present on the partial ‘volunteer’ jury.17 On further appeal, the United States Court of Appeal for the Armed Forces, the highest military court in the land, affirmed both the trial and appellate court rulings finding that, although the practice of empanelling jurists through a voluntary process was error, "reasons for volunteering given by every panel member establish only good intentions of each member and no basis to question their motive."18 With this lack of preconceived motive, the Court of Appeal held that no prejudice permeated the panel’s guilty verdict.19 The Court of Appeal’s opinion admonished the ‘volunteer’ process of jurist selection but looked to United States v. Kennedy,20 a federal appellate case not governed by the strictures of the UCMJ, to back up its ‘no prejudice’ theory.21

The court in Kennedy held that any use of volunteer jurists to hear a federal case "violate[ed] both the letter and spirit of the Jury Selection and Service Act of 1968…and its requirement of random selection."22 However, the Court of Appeal in Dowty conveniently found that the "linchpin" of the Kennedy decision was that use of volunteer jurists was merely "a substantial variable, not contemplated by the Act’s few, narrow categories of qualifications, exemptions, excuses [that have] confounded the selection process."23 Using this dicta expressed by the federal appellate court, the military Court of Appeal chose not to speculate as to any biases of the volunteers on the panel and "simply condemn[ed] the practice of soliciting only volunteers for the panel pool."24

Additionally, the Court of Appeals, in holding that "there [was] no showing of an improper motive by anyone involved in the nomination or selection of the members," relied simply upon the CA’s authority to choose the "best qualified" panel members, despite the fact that the panel was comprised of nearly half voluntary jurists.25 To end their meandering opinion, the Court of Appeal, in deferring to higher authority, stated that "long ago regarding this matter of members selected we stated ‘this 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 Congress.’"26

Looking at this case from a military policy standpoint, it should be noted that the main purpose for the formation of the UCMJ was to "promote justice, to assist in maintaining good order and discipline in the armed forces."27 That being said, Judge Cox, in United States v. Smith,28 high-lighted the great responsibility involved in maintaining "good order and discipline" when he eloquently posited that "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. It is a responsibility that Congress has entrusted to convening auth-orities…"29 Judge Cox further remarked that the jury selection process "is the most vulnerable aspect of the court-martial system, the easiest for critics to attack. 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."30

The reason Dowty is so alarming to those familiar with the military and the intricacies of the UCMJ is that it appears that the highest courts of our military are making excuses for the weaknesses inherent in the jury selection process instead of lobbying for change. Commentators have offered real solutions to the arbitrary selection criteria con-tained in Art. 25(d) such as the use of random selection of panel members, the shifting of power of selection from CAs to plaintiff/defendant JAG officers (as in the civilian sector), and panel selection by military judge.31 However, both Congress and the convening military authorities have resisted any manner of sweeping change; especially with regard to the panel selection process for the all important court-martial.32 It appears that judicial errors, such as allowing volunteer jurists to decide the fates our service men and women, will continue unabated until the slow legislative process corrects itself in the form of a bottom-up revision of the UCMJ.

Interestingly, the same court that decided Dowty stated, somewhat reciprocally, that "the implication is that Congress intended that, to the extent "practicable," trial by court-martial should resemble a criminal trial in a federal district court."33 Granted, this statement does not hold true to all aspects of the military panel selection process. Many hardships are encountered by large com-mands in sprawling military-dominant towns, and conversely, small commands in remote locations of the world. However, that does not mean that a servicemember’s constitutional right to due process and a fair and impartial jury should be infringed upon by a judicial body which seems to hold arbitrary selection laws in esteem over the execution of ‘fair and impartial’ justice for our military members.

In summary, the military faces many tough policy issues in the future, both on and off the battlefield. Our fighting forces’ rights, including their con-stitutional right to a ‘fair and impartial’ jury, should not be usurped and/or abused while the legislative process attempts to consider these new policies. Both the Congress and the members of the military legal community bear the responsibility of attempting to alleviate the perception of unfairness that is currently being shed on the jury selection process through decisions such as Dowty. Dowty is yet another prime example of how the military needs to seal the cracks in the halls of justice for the betterment of today’s military judicial system which has the tremendous task of governing the elite fighting forces in the world. Hopefully, as Congress and the military judicial body are notified of these judicial shortcomings concerning the military panel selection process and beyond, they will act and review this system in order to better protect the fighting forces as a whole.

1 Solorio v. United States, 483 U.S. 435, 453 (1987).

2United States v. Roland, 50 M.J. 66 (C.A.A.F. 1999).

3Colonel James A. Young III, Revising the Court Member Selection Process, 163 Mil. L. Rev. 91, 124 (2000).

4 Lt. Col. James A. Young, The Continued Viability of Peremptory Challenges In Courts-Martial, 1992 Army Law. 20, 23 (1992).

5 Lt. Col. James A. Young, The Continued Viability of Peremptory Challenges In Courts-Martial, 1992 Army Law. 20, 23 (1992).

6 10 U.S.C.S. § 825(d ).

7 10 U.S.C.S. § 825(d ).

8 10 U.S.C.S. § 825(d ); see also Roland, 50 M.J. 66 at 71.

9 United States v. Smith, 27 M.J. 242, 249 (C.M.A. 1988).

10 United States v. Crawford, 15 U.S.C.M.A. 31 (C.M.A. 1964).

11 Dowty, 60 M.J. at 163.

12 Dowty, 60 M.J. at 165.

13 Dowty, 60 M.J. at 165.

14 Dowty, 60 M.J. at 166.

15 Dowty, 60 M.J. at 166.

16 Dowty, 60 M.J. at 167.

17 Dowty, 60 M.J. at 173.

18 Dowty, 60 M.J. at 172.

19 Dowty, 60 M.J. at 172.

20 548 F.2d 608, 609 (5th Cir. 1977).

21 Kennedy, 548 F.2d at 609.

22 Kennedy, 548 F.2d at 608.

23 Dowty 60 M.J. at 172.

24 Dowty 60 M.J. at 172.

25 Dowty 60 M.J. at 173.

26 Dowty 60 M.J. at 176.

27 Young, 163 Mil. L. Rev. at 97.

28 27 M.J. 242, 252 (C.M.A. 1988).

29 Smith, 27 M.J. at 252.

30 Smith, 27 M.J. at 252.

31 Young, 163 Mil. L. Rev. at 97.

32 Young,163 Mil. L. Rev. at 97.

33 United States v. Valigura, 54 M.J. 187, 191 (C.A.A.F. 2000).

Charles Leen is a second-year law student at Loyola University Chicago, School of Law. He is currently a law clerk at Corboy & Demetrio, P.C. Prior to entering law school, Mr. Leen served as a Naval Officer aboard the USS DULUTH in support of Operations Iraqi and Enduring Freedom from 2002-2006.

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