The Military Jury - Pt II
Two weeks ago, I published a ‘Military Jury Pt I’ post with complete confidence in the final essay for my military law class.
I had some good research in the bank, a boom-boom-boom outline, and a concept that made total sense in my head. Things were going swimmingly.
Until they weren’t. Twenty eight years and an English degree should’ve taught me that a paper rarely ends the way it starts…
Instead of a Pt II post on the OG paper, this is now a Pt I post about the new and IMPROVED version. It’s still about the military jury, it’s just not about the 6th Amendment right (or lack of a right) to have one - I’ll save that for another day. It’s now about whether the convening authority’s power in choosing panel members is a-okay under the Due Process and Equal Protection clauses of the 5th Amendment. Onward!
Quick Background
‘Juries’ have always been part of military justice, just not in the same form as juries in the civilian world. First, military juries are called “panels” and military jurors are called “members.” Second, courts-martial are ‘convened’ (put together) by military commanders (called ‘convening authorities’), and the convening authority is responsible for choosing the members.
This is not at all how it happens outside the military. In a civilian court, jurors are selected at random based on sources like voting registration lists, driver’s license records, and telephone directories. In a court-martial, all the members must be active duty military and generally stationed where the court will occur; they also can’t be in training, or deployed, or otherwise unavailable. Plus, there are rules about who can serve on a courts-martial panel (for example: only officers if the accused is also an officer) that don’t have counterparts in the civilian world. Finally, per Article 25 in the UCMJ, convening authorities must select panel members who are, in their opinion, “best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament.” That’s basically the opposite of the random juror selection in civilian trials.
You might be thinking, so, how is the military process legal? First, the convening authority’s powers have been intact since before the Constitution and Congress preserved those powers in the Uniform Code of Military Justice (UCMJ). Second, as we know from my OG paper attempts, the Sixth Amendment guarantee to a “jury of peers” from a “fair cross section of the community” does not (and has never) applied to the military jury.* Therefore, this method of panel selection has been the status quo for quiiiiiiite a while.
But that doesn’t mean it can’t be challenged!
*Again, I’m not convinced about this…but that’s for another paper.
Due Process
The Sixth Amendment might not apply in the military, but the Fifth Amendment still does. After Congress guaranteed military members a panel (for certain trials) in 1950, the courts had to figure out how much of the Fifth Amendment applied with respect to those panels and selection. In the end, the courts applied most of the ‘normal’ constitutional due process to military situations, but deferred strongly to congressional legislation in doing so. That means convening authorities are given a lot of deference in choosing their ‘best qualified’ members, but the resulting panel must still be “fair and impartial.”
Still - courts have definitively ruled that commanders CANNOT do the following when selecting jury members:
Pick members based solely on their rank;
Pick members based on who volunteers to take part in the court-martial;
“Pack” a panel to achieve a desired result; or
Systemically exclude military members in lower eligible grades.
I plan to challenge this last point in my paper because I think that’s exactly what happens under the current Article 25, whether commanders do so intentionally or not. The congressional mandate that convening authorities consider “age, education, experience, and length of service” in choosing “best qualified” panelists creates a bias against lower ranked personnel (who are generally younger, with less education and less military experience).
Equal Protection
On a separate but related point, the Fifth Amendment also commands that everyone receive ‘equal protection’ under the law. This includes accused service members at a court-martial, and the manner in which their panelists are selected. I haven’t fully fleshed out this section yet, but I plan to look at how Article 25’s vagueness and non-uniformity creates unacceptable disparities across not just branches, but even within commands and among units of the same base. Furthermore, there may be some merit in the observation that while officers are always afforded a “panel of their peers” - other officers - enlisted members are denied the same because they cannot have a full panel of solely enlisted members.
Finally, there’s always a concern about how an accused servicemember can possibly verify whether their convening authority complied with the UCMJ when selecting their panel. This obscurity creates a decidedly negative perception of commanders (warranted or not) ‘stacking the deck’ against defendants, which is its own UCMJ violation called Unlawful Command Influence - the “mortal enemy” of military justice. That’s probably beyond the scope of my specific paper, but it weighs in favor of a reformed process!
Challenges
This paper has proven more difficult than expected because the jurisprudence in these areas (how the law has developed) is pretty confusing. Civilian due process is one thing, military due process is *kind of* a different thing, and equal protection exists within all of it but has never been precisely addressed in this context. Therefore, it’s far easier to make policy arguments about why the manner of panel selection should be changed than legal arguments about why it’s legitimately unconstitutional. But I’m getting there! Like any good paper, it’s taken a lot of time and forced a fair amount of deep thought - I just hope that all shows in the final product 🤞
