Panel Selection and Article 25, UCMJ

According to Article 25, UCMJ, the convening authority must select members who, in the convening authority's personal opinion, are "best qualified" based on age, education, training, experience, length of service and judicial temperament.

United States v. Gooch, No. 37303, 2009 WL 4110962 (A.F. Ct. Crim. App. Nov. 24, 2009) (unpublished), review granted, 69 M.J. 92 (C.A.A.F. 2010) deals with race as an impermissible factor. The accused is African-American. At the time of referral, one African- American female was selected for the accused's court-martial but she was removed at her request for personal reasons. The military judge denied the defense motion for dismissal, finding (in the court's words) "no diversity requirement under Article 25, UCMJ" and "that those involved in the selection of the appellant's court-martial panel did not consider race, sex, or command experience in selecting the prospective court members." The military judge's findings of fact on this issue were supported by testimony of the paralegal who was responsible for preparing the convening authority's selection pool.

On appeal, the accused challenged his conviction on several grounds, including that his court-martial panel did not include a member of his race and therefore the panel selection process was improper. The ACCA found the convening authority properly selected panel members for the accused's court-martial.

While an accused has a constitutional and statutory right to a fair and impartial court-martial panel (United States v. Downing, 56 M.J. 419, 421 (C.A.A.F. 2002)), there is no right to have members of his or her own race (United States v. Hodge, 26 M.J. 596, 600 (A.C.M.R. 1988), aff'd, 29 M.J. 304 (C.M.A. 1989)). a) Rather, Article 25(d)(2) requires the convening authority personally select those members who are "best qualified" based on "age, education, training, experience, length of service, and judicial temperament." While race is not a criterion, a convening authority may not "systematically exclude" otherwise qualified personnel from court-martial duty based on race (United States v. Kirkland, 53 M.J. 22, 24-25 (C.A.A.F. 2000)). Though not mentioned in the opinion, it has long been held that an accused has no right to a jury of his or her peers. United States v. Dowty, 60 M.J. 163, 169 (C.A.A.F. 2004) ("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)). See also United States v. Witham, 47 M.J. 297, 301 (C.A.A.F. 1997)

As a general principle, it is proper to assume that a convening authority is aware of his duties, powers and responsibilities and that he performs them satisfactorily." (United States v. Townsend, 12 M.J. 861, 862 (A.F.C.M.R. 1981)). The defense has the "initial burden of establishing the improper exclusion of qualified personnel from the selection process." (Kirkland, 53 M.J. at 24). The defense must make than "a mere allegation or speculation" (United States v. Biagase, 50 M.J. 143, 150 (C.A.A.F. 1999)). Once the defense meets this burden, the Government must show by "competent evidence" that there was no impropriety in the selection process (Kirkland, 53 M.J. at 24).

The court concluded the defense did not meet its initial burden, and instead only offered "mere allegations of speculation of impropriety." The court further opined that there was no evidence of improper exclusion of personnel from the courtmartial selection process.

CAAF granted review.

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