Members Selection & UCI

The Navy-Marine Corps Court of Criminal Appeals has published it's opinion in United States v. Morrison , a Naval Academy sexual misconduct case. The case was one of several involving football players. The two issues discussed in the appellate case relate to members panel "stacking" and unlawful command influence.

The two reminders of the law we take from this case are:

A court-martial may not be purposefully “stacked” to achieve a desired result and officers, otherwise eligible to serve, may not be excluded from service based solely on their rank. See United States v. Hilow, 32 M.J. 439, 440 (C.M.A. 1991); United States v. Smith, 27 M.J. 242 (C.M.A. 1988); United States v. Crawford, 35 C.M.R. 3, 12 (C.M.A. 1964). Court-packing does not deprive the court-martial of jurisdiction, but is a form of UCI. United States v. Lewis, 46 M.J. 338, 341 (C.A.A.F. 1997).

[W]e begin our consideration of whether actual UCI existed with a presumption that the CA acted in good faith and applied the Article 25(d) criteria conscientiously. United States v. Carman, 19 M.J. 932, 936 (A.C.M.R. 1985). The burden of presenting sufficient evidence to raise the issue of actual UCI rests with the appellant. The threshold for raising the issue of UCI at trial is low, but requires more than mere allegation or speculation. United States v. Biagase, 50 M.J. 143, 150 (C.A.A.F. 1999)(citations omitted).