

   
   
   
   U.S. v. Kirkland



UNITED STATES, Appellee
v.
Jesse L. KIRKLAND, Airman First Class
U. S. Air Force, Appellant
 
No. 99-0651
Crim. App. No. 33064
 
United States Court of Appeals for
the Armed forces
Argued February 2, 2000
Decided May 1, 2000
CRAWFORD, C.J., delivered the opinion
of the Court, in which GIERKE and EFFRON, JJ., and COX, S.J., joined. SULLIVAN,
J., filed a dissenting opinion.

Counsel
For Appellant: Major Thomas R. Uiselt
(argued); Colonel Jeanne M. Rueth (on brief).
For Appellee: Captain Christa S.
Cothrel (argued); Colonel Anthony P. Dattilo and Lieutenant
Colonel Ronald A. Rodgers (on brief).
Military Judge: Howard R. Altschwager
 

THIS OPINION IS
SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION

Chief Judge CRAWFORD delivered the
opinion of the Court.
Pursuant to his pleas, appellant was
convicted of wrongful possession, use, and distribution of LSD and marihuana
over a 4-month period of time, in violation of Article 112a, Uniform Code
of Military Justice, 10 USC § 912a. A panel of officer and enlisted
members sentenced him to a bad-conduct discharge, confinement for 1 year,
total forfeitures, and reduction to the lowest enlisted grade. The convening
authority approved these results, and the Court of Criminal Appeals affirmed.
We granted the assigned issue as follows:

WHETHER THE MILITARY JUDGE ERRED
IN DENYING THE DEFENSE MOTION FOR A NEW COURT-MARTIAL PANEL.

For the reasons set forth below, we reverse
the Court of Criminal Appeals.

FACTS
Prior to his court-martial, appellant
submitted a request for the appointment of enlisted members. In response
to that request, the General Court-Martial Convening Authority (GCMCA)
selected senior enlisted servicemembers as members of appellants court-martial
panel. These enlisted members were selected from a nomination list of nine
noncommissioned officers provided to the GCMCA by the Special Court-Martial
Convening Authority (SPCMCA) and his servicing Staff Judge Advocate (SJA).
At trial, appellants defense counsel brought a motion to dismiss for lack
of jurisdiction based on improper jury selection.
Two paralegal noncommissioned officers
from the Base Legal Office testified at trial as to the process for nominating
and recommending prospective enlisted court members for appellants court-martial.
Senior Airmen G testified that the Legal Office sent out a quarterly letter
to the group commanders, signed by the Base Commander, the SPCMCA, asking
for nominees for a court member selection pool. The letter requested each
commander nominate a specific number of qualified personnel from a variety
of ranks. Each nominee was required to submit an updated court member data
sheet to the Legal Office. Attached to the letter was a chart evidencing
the specific number of personnel of each military rank a particular commander
was asked to nominate. This chart was based on a "unit management document"
utilized by the Base Legal Office military justice section. The number
and rank of the personnel that each commander was asked to nominate for
court member selection was derived from the unit management document in
order to avoid overtasking the individual units. The chart had a column
for E-7, E-8, and E-9, but no place to list a nominee in a lower grade.
To nominate an E-6 or below, the nominating official would have to modify
the form.
Staff Sergeant F, the other paralegal
noncommissioned officer, stated that she supplied the names of enlisted
personnel for court-martial duty by looking through a Legal Office notebook
filled with the data sheets of the enlisted personnel nominated by their
units as potential court-martial panel members. She then called the units
to determine each potential members availability, and compiled a list
of the available members, which was provided to the SPCMCA with the court
member data sheets.
Colonel C, the SPCMCA, testified he
nominated prospective court members from the list provided by the Legal
Office and then transmitted the list to the GCMCA, Major General H, who
made the final selections. He also testified that he understood that he
could recommend whomever he wanted for the court-martial, provided they
met the requirements of Article 25, UCMJ, 10 USC § 825.
Lieutenant Colonel W, the acting SJA,
testified that the Legal Office transmitted the list to the GCMCA. He also
testified that he briefed Major General H on his duties and his ability
to select other military members, assuming they met Article 25 criteria.
In finding a lack of intent by the
convening authority to systematically exclude enlisted members below the
grade of E-7, the military judge made the following pertinent findings
of fact and conclusions of law:

Over the last three months, three
enlisted members had requested enlisted members on their court. These requests
required them to duplicate this process for enlisted members, and in order
to save time, the military justice section NCOs requested the squadrons
and groups to also nominate NCOs. The worksheet only had room for E-9s,
E-8s, and E-7s. When the accused in this case requested enlisted members,
the NCOs only contacted enlisted members for whom they had data sheets,
specifically E-7s, E-8s and E-9s.

 

The legal office then submitted Appellate
Exhibit IV to the special court-martial convening authority to use to recommend
names of enlisted members who were available for court duty. The special
court-martial convening authority testified he knows he can pick anyone
under his command as a court member. He has filled in names of persons
not in the suggested list before, but chose not to do so in this case.

 


* * *


 

In this case, the original court panel
contained a broad spectrum of ranks. The special court-martial convening
authority has no recollection as to why he chose to delete the junior officer
members from this court when the accused requested enlisted members, other
than he had appointed a lieutenant colonel to be an investigating officer
and needed to excuse him.

 


* * *


 

In this case, the testimony of the special
court-martial convening authority and the general court-martial convening
authority[s] legal advisor is that rank was not a criterion for member
selection, and both convening authorities know about their authority to
appoint any member of their command as a court member.

 

The likelihood is that subconsciously
enlisted members below E-7 were not selected because they did not appear
on the list which is Appellate Exhibit IV. The likelihood that someone
not on the list will be selected is less than the likelihood someone on
the list will be selected. However, does this equate to a violation of
Article 25? In light of the explicit testimony, the answer is no.

DISCUSSION
Whether a court-martial panel was selected
free from systematic exclusion is a question of law which we review de
novo.
United States v. McClain, 22 MJ 124 (CMA 1986). The
defense shoulders the burden of establishing the improper exclusion of
qualified personnel from the selection process. United States v. Roland,
50 MJ 66, 69 (1999). Once the defense establishes such exclusion, the Government
must show by competent evidence that no impropriety occurred when selecting
appellants court-martial members. Cf. Castaneda v. Partida,
430 U.S. 482, 501 (1977)(state failed to rebut the presumption of purposeful
discrimination by competent testimony).
While the military defendant does not
enjoy a Sixth Amendment right to a trial by "impartial jury," he or she
does have a right to "members who are fair and impartial." Roland,
50 MJ at 68. In Roland, we stated that "members may not be selected
solely on the basis of their rank." We also said:

Presenting nominations to a convening
authority is a reasonable means of assisting the convening authority, provided
it does not improperly exclude eligible servicemembers.... This nomination
process may not systematically exclude or include a certain category of
servicemembers. When the request for nominations does improperly include
or exclude certain members, this court will ensure that those actions do
not taint the selection by the convening authority.

Id. at 68-69 (citation omitted).
Here, the Legal Office sent out a quarterly
letter with an attached chart to the group commanders, signed by the Base
Commander, asking for nominees for a court member selection pool. The letter
from the SJA told the group commanders to nominate officers and senior
enlisted persons using the attached chart. The chart did not provide any
place to nominate court members below the grade of E-7.
Additionally, when suggested nominations
were forwarded, there were no enlisted nominees below the grade of E-7.
Finally, the GCMCA did not appoint any enlisted member not on the list.
Although this case does not involve
the clear institutional bias found in McClain, the exclusion of
potentially qualified members below the grade of E-7 in this case was improper.
See
generally United States v. Daigle, 1 MJ 139 (CMA 1975). Under
these facts, we hold that the military judge erred in denying the defense
request for a new court-martial panel.
Even though the military judge found
that neither the SPCMCA nor the GCMCA used rank as a criterion in the selection
process, where an unresolved appearance that potentially qualified court
members below the grade of E-7 were excluded, "reversal of the sentence
is appropriate to uphold the essential fairness and integrity of the military
justice system." McClain, 22 MJ at 133 (Cox, J., concurring in the
result).
No more than that is needed, however,
because there is no indication that the exclusion of enlisted members below
the grade of E-7 induced appellants guilty plea, nor does he attack its
voluntariness.
The decision of the United States Air
Force Court of Criminal Appeals is affirmed as to findings but reversed
as to sentence. The record of trial is returned to the Judge Advocate General
of the Air Force for remand to that court. A rehearing on sentence is authorized.


SULLIVAN, Judge (dissenting):
I fail to understand why the majority
is departing from United States v. Roland, 50 MJ 66 (1999), which
was decided only a year ago. I concurred in the result of that case which
affirmed the decision of the court below that the military judge did not
err in failing to find that the jury had been improperly selected. I stated:

The staff judge advocate (SJA)s
letter sought court nominations from every grade from E-5 to O-6 to be
included in the recommended jury pool. The implicit exclusion of certain
ranks (E-4 and below) in appellants case troubles me. However, the SJAs
letter, on its face, was designated as mere guidance, and the convening
authority was informed of his opportunity to select anyone from his command.
Moreover, the military judge found that no bad intent to influence the
court-martial and no deliberate stacking of the pool existed, as in United
States v. Hilow, 32 MJ 439 (CMA 1991). I would hold there was no violation
of Articles 25 and 37, Uniform Code of Military Justice, 10 USC §§
825 and 837, in these circumstances. Perhaps, if a random jury selection
system now being studied by the Department of Defense is adopted, challenges
like the one in this case will occur less. See United States
v. Upshaw, 49 MJ 111, 114 (1998)(Sullivan, J., concurring).

50 MJ at 70.
I am troubled by the implicit exclusion
of certain ranks in appellants case as well, but I reach the same conclusion
here as I did in my separate opinion in Roland. The majority places
too much emphasis on the "form" of the chart attached to the letter asking
for court-martial member nominees in the instant case. As in Roland,
the instant record shows no policy to exclude portions of the enlisted
ranks. Specifically, the form of the chart demonstrates nothing but a mistake
of the legal office and the command in putting together the composition
of this court-martial. The majority truly elevates "form" over substance
to reverse a case without adequate legal reason. I would affirm this felony
drug conviction and the approved sentence.

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