The convening authority’s discretion in selecting court-martial panel members is broad but not absolute. It is limited by the UCMJ, the Rules for Courts-Martial, and constitutional principles of due process and equal protection. The primary rule is that the convening authority must select members who are, in their judgment, “best qualified for the duty by reason of their age, education, training, experience, length of service, and judicial temperament.” This is a subjective standard, but it cannot be used for an improper purpose.
The most significant limitation is the prohibition on “stacking the panel.” The convening authority cannot select or exclude members based on their race, gender, or religion. They also cannot systematically and deliberately select members who they believe will be more likely to convict or to adjudge a harsh sentence. This would be a form of Unlawful Command Influence (UCI). The selection process must be fair and unbiased.
A military defense attorney can challenge the panel’s composition by filing a motion with the military judge. If the attorney can present evidence showing a systematic exclusion of a certain group (e.g., all female members being excluded from a panel in a sexual assault case) or evidence that the convening authority was trying to “stack the deck,” the judge can grant a remedy. This could include ordering the convening authority to select a new, fair panel, or in egregious cases, dismissing the charges due to the UCI.