United States v. Nixon

30 M.J. 1210, 1990 CMR LEXIS 628, 1990 WL 91357

• Court: U.S. Army Court of Military Review
• Decided: June 29, 1990
• Docket: ACMR 8800626
• Status: Published

Opinions

OPINION OF THE COURT ON RECONSIDERATION

KUCERA, Senior Judge:

On 11 May 1990, a panel of this court on its own motion reconsidered its unpublished opinion dated 23 March 1990. Subsequently, the government petitioned the court for reconsideration en banc. The court as a whole granted the government’s request on 6 June 1990 and vacated its decision of 11 May 1990.

Contrary to his pleas, a military judge sitting as a general court-martial convicted the appellant of an indecent act with a child under the age of sixteen in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934 (1982) [hereinafter UCMJ].¹ The convening authority approved the adjudged sentence of a bad-conduct discharge, confinement for two years, forfeiture of all pay and allowances, and reduction to the grade of Private El.

The appellant assigns, inter alia, the following error:

THE MILITARY JUDGE COMMITTED JURISDICTIONAL ERROR WHEN HE REFUSED TO ORDER THE APPOINTMENT OF NEW ENLISTED PERSONNEL WHEN THE DEFENSE ESTABLISHED THAT THE ENLISTED MEMBERS WERE CHOSEN BASED ON RANK.

The evidence of record shows that the staff judge advocate (SJA) requested from the major subordinate commands the names of twenty soldiers serving in the pay grade of E9, ten serving in the pay grade of E8, ten serving in the pay grade of E7, ten serving in the pay grades of E6 to E5, and ten serving in the pay grades of E5 to El as nominees to sit on courts-martial with enlisted members. The major commands responded by nominating twenty-one soldiers serving in the pay grade of E9, nine serving in the pay grade of E8, six serving in the pay grade of E7, six serving in the pay grade of E6, four serving in the pay grade of E5, seven serving in the pay grade of E4, and one serving in the pay grade of El for a total of fifty-four enlisted nominees. The SJA submitted the names of all fifty-four nominees to the convening authority with the advice that the convening authority was not limited in his selection to the fifty-four nominees and that he may select anyone who, “in his opinion,” is best qualified to sit on the court by reason of “age, education, training, experience, length of service, and judicial temperament.” UCMJ art. 25(d)(2), 10 U.S.C. § 825(d)(2). The SJA further recommended that the convening authority select twelve enlisted members. Acting on the SJA’s advice, the convening authority personally selected eleven enlisted members in the pay grade of E9 and two in the pay grade of E8 whose names were then placed on a standing list from which to select courts-martial panel members. When later the appellant requested a trial with enlisted members, the convening authority selected from that standing list four enlisted members in the pay grade of E9 and two in the pay grade of E8 who then were detailed to sit on appellant’s case.

The convening authority testified that in his selection of court members, he considers the terms of Article 25 of the UCMJ and evaluates potential members’ “age, education, training, experience, length of service and judicial temperament.” In accordance with his responsibility, which he takes “very very seriously,” he tries to pick those individuals that he feels would assure the accused the “fairest trial”.² In his “best judgment as the Convening Authority, with the sincere desire to ensure that justice is maintained in a fair and impartial way for everybody”, he mentally passes the prospective court members through the six criteria of Article 25, UCMJ and, based on his experience, he picks those who best satisfy such criteria. His selection process is “completely rank immaterial” based only upon criteria of Article 25, UCMJ.

Article 25(d)(2), UCMJ, in part provides that the convening authority shall detail to a court such panel members as, “in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service and judicial temperament” (emphasis added). In United States v. Crawford, 35 C.M.R. 3, 11 (C.M.A.1964), the Court held “[a] method of selection which uses criteria reasonably and rationally calculated to obtain jurors meeting the statutory requirements for service is proper.” That Court also took judicial notice that many in the lower enlisted ranks were qualified to serve on courts-martial. However, the Court found a close correlation between the enumerated criteria of Article 25, UCMJ, and seniority of rank, and on that basis upheld the staff judge advocate’s request for senior enlisted members. The Court also found that there was no intent to exclude any group or class on “irrelevant, irrational, or prohibited grounds.” Id. at 12. As Chief Judge Quinn observed, it is permissible to anticipate that the senior enlisted ranks will more readily provide a large number of persons possessing the qualities expected of court members. “The senior noncommissioned ranks provided a convenient and logically probable source for eligibles. To refer first to those ranks for prospective members is not an impermissible choice (citation omitted).” Id. In appellant’s case, the convening authority did just that. If Article 25(d)(2), UCMJ, means what it says, the military judge correctly denied the defense’s motion to dismiss for lack of jurisdiction due to improper selection of enlisted members to the court. The appellant has not shown any illegal or improper motive in the nomination, selection, or detail of enlisted court members. Any question about the convening authority’s motive for selecting the members in this case was dispelled by the convening authority’s testimony. We find no sinister motive and no intent to exclude any group or class on irrelevant, irrational, or prohibited grounds. Although he selected senior non-commissioned officers for the panel, we find that he did not categorically exclude the lower grades from consideration.

The dissenting opinion strays far afield from Article 25, UCMJ. Instead of testing the convening authority’s selection against the composite criteria of age, education, training, length of service and judicial temperament, it finds as its major premise “that the convening authority applied a virtually irrebuttable presumption that enlisted personnel below the grade of those he selected ... lack the ability to make findings and adjudge sentences in accordance with the instructions of the military judge.” To give credence to such a presumption, one would first have to disbelieve the convening authority’s testimony to the contrary. I am not willing to do that as I am convinced beyond a reasonable doubt that the convening authority testified forthrightly and truthfully.³

Quoting from Judge Cox’s concurring opinion in United States v. McClain, 22 M.J. 124, 133 (C.M.A.1986), in this case I too “am convinced beyond any reasonable doubt that the convening authority was sensitive to his statutory duties to appoint members who ‘in his opinion ... [were] best qualified ... ’ in accordance with Article 25(d)(2).”

We have considered the other errors raised and find them without merit.

Accordingly, the approved findings of guilty and the sentence are affirmed.

Chief Judge DeFORD, Senior Judge MYERS, Senior Judge FOREMAN, Judge JOHNSON, Judge KANE, Judge WERNER, Judge GRAY, and Judge NEURAUTER concur.⁴

1 . Initially, appellant requested to be tried by a panel with enlisted members. When the military judge denied his motion requesting that a new panel be selected, he chose to be tried by a military judge alone.

2 . The following is an excerpt from the convening authority's testimony:

A: Somebody may ask why there aren’t any PFC’s on that panel. As I take all those factors in Article 25 of the Uniform Code of Military Justice and I pass a PFC through them, it’s very difficult for me to find youngsters who, in fact, measure up to those criterion. So, my judgement is justice is better served and that the individual is better served if you have people who meet those criterion, so I try to pick people who do. In some other court cases I have picked a staff sergeant and I have picked a sergeant first class, so It’s [sic] not limited exclusively to sergeant majors [sic] and master sergeants.

Q: Do you ever consider rank independently as opposed to how it impacts on the other qualifications you’ve discussed in Article 25?

A: No. I would just add one thing to you though, in that when I select these courts, I really want to select people that have the freedom to act as they feel, independent of any outside pressure, and I would tell you that a sergeant major or a command sergeant major has very very little to lose. Those are the individuals who have the most freedom of responsibility.

A: ... Anybody who knows a sergeant major or command sergeant major in this room knows that command sergeant majors or sergeant majors are not intimidated by anybody, at any time, in any way, as a general rule. They do think their own minds too.

Record of Trial at 42-43.

3 . In my personal opinion, the sub silentio premise of the dissenting opinion is a chimerical assumption that "higher the grade-tougher the court." Based on almost forty years of experience, I categorically reject such a view.