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7 Geo. Mason L. Rev. 1013 (1998-1999)
Reforming Court-Martial Panel Selection: Why Change Makes Sense for Military Commanders and Military Justice

handle is hein.journals/gmlr7 and id is 1023 raw text is: REFORMING COURT-MARTIAL PANEL SELECTION:
One of the most controversial aspects of the military justice system is
the power of convening authorities  to select the panel members who serve
on military juries.2 Rather than choosing panel members randomly from a
representative cross section of the community, convening authorities
handpick members of their commands to judge service members accused
of crimes.3 Defenders of the military justice system         argue that the military
administers courts-martial fairly, and that critics just do not understand
military justice.4 Recent changes in the British military justice system
place this faithful response to the critics in greater doubt, however, and
should prompt an examination into whether convening authorities should
retain the power to select panel members for courts-martial.
The British government recently reformed its entire military justice
system5 in response to the European Commission of Human-!Rights' hold-
ing in Findlay v. United Kingdom.6 In Findlay,7 the Commission held that
1 Convening authorities are military commanders empowered to convene courts-martial to try
service members for suspected crimes. See Uniform Code of Military Justice (UCMJ) arts. 22-24, 10
U.S.C. §§ 822-24 (1994).
2 Military juries are commonly called court-martial panels. The Uniform Code of Military
Justice vests convening authorities with the power to select those persons whom the convening author-
ity thinks are the best qualified for duty as panel members. Using statutorily defined criteria such as
age, education, training, experience, length of service, and judicial temperament, convening authorities
choose panel members from those eligible within the convening authority's own command. See UCMJ
art. 25, 10 U.S.C. § 825 (1994).
3 One might initially assume that the United States' policy guaranteeing litigants in federal
courts to a petit jury selected at random from a fair cross section of the community applies to courts-
martial. See Jury Selection and Service Act of 1968, 28 U.S.C. § 1861 (1994). This policy, however,
does not apply to courts-martial for many sensible reasons. See discussion, infra Part H. The author
mentions this difference to inform the reader of this important distinction between federal jury selec-
tion and courts-martial panel selection, not to argue that the court martial panel selection should be
changed to the method used for federal jury selection.
4 See, e.g., John F. O'Conner, Don't Know Much About History. The Constitution, Historical
Practice, and the Death Penalty Jurisdiction of Courts-Martial, 52 U. MIAMI L. REv. 177 (1997); Kevin
K. Spradling & Kevin K. Murphy, Capital Punishment, the Constitution, and the Uniform Code of
Military Justice, 32 A.F. L. REV. 414 (1990).
5 The Armed Forces Act of 1996 codified the British govemment's changes to the British
military justice system. See Armed Forces Act, 1996, §§ 76-103 (Eng.), reprinted in HALIBURY'S
STATUTES OF ENGLAND AND WALES 287-374, vol. 3 (cont.), 4th ed. 1997.
6 Findlay v. United Kingdom, 1995 Y.B. Eur. Cony. on H.R. 186 (Eur. Comm'n on H.R.).
confirmed by, 30 Eur. Ct. H.R. (ser. B) at 263 (1997).
7 Lance Sergeant Alexander Findlay originally appeared before a general court-martial in
November 1991. See Findlay, 30 Eur. Ct. H.R. (ser. B) at 269. The charges against Findlay arose from



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