## Facts

- First Lieutenant Rickie Smith, U.S. Army, was tried by general court-martial for sexually assaulting a female officer; identity of the assailant was disputed.
- Eight of ten members on the original convening order were unavailable due to knowledge of the case, connections to the victim, or duty conflicts, leaving two male officers.
- A legal clerk in the staff judge advocate’s office was tasked with locating additional eligible members under time and availability constraints.
- The clerk believed there was an office practice of ensuring “at least two females” were available for panels in sex-offense cases with female victims, based on the view that women would better understand the victim.
- Unable to locate available women on the usual alternate list, the clerk searched more broadly and identified two available female officers, with informal assistance from a trial counsel not assigned to the case.
- The clerk forwarded a list of potential members to the convening authority that included the two women.
- The convening authority selected those two women and several men from the list, and also selected additional male members not on the list, forming a ten-member panel.
- The panel convicted Smith.
- After trial, defense counsel learned of the selection process and obtained a post-trial hearing regarding member selection.
- At the hearing, superiors denied any formal gender-based policy, but several participants (including the convening authority) acknowledged a preference to include women on panels in sex-crime cases with female victims.
- The Army Court of Military Review affirmed; the Court of Military Appeals granted review.

## Issues

1. Whether deliberately seeking to include women on a court-martial panel in a sexual-assault case involving a female victim violated Article 25, UCMJ, or otherwise resulted in an unlawfully composed panel requiring reversal.
2. Whether the member-selection process amounted to unlawful “court-packing” or an impermissible gender-based classification.
3. Whether any defect in the selection process required relief absent a showing of prejudice.

## Decision

- The Court of Military Appeals affirmed the conviction and sentence.
- The court held the panel was not unlawfully composed and the member-selection process did not constitute reversible error.
- The court found no showing of systematic exclusion of men or an intent to manipulate the panel to achieve a particular outcome.
- The court concluded Smith failed to demonstrate a structural defect or actual prejudice warranting reversal.

## Legal Principles

- Article 25(d)(2), UCMJ, grants the convening authority broad discretion to detail members who, in the convening authority’s opinion, are best qualified by age, education, training, experience, length of service, and judicial temperament.
- A court-martial panel need not be a statistical cross-section of the command; representativeness is not required by Article 25.
- Member selection is unlawful if used to “stack” a panel or if it employs prohibited classifications through systematic exclusion or inclusion designed to influence results.
- An informal preference to include some demographic representation, without a rigid policy and without exclusion of another group as a class, does not by itself establish unlawful member selection.
- Relief for improper member selection generally requires proof that Article 25 criteria were abandoned in bad faith or that the selection process created an unlawful panel or caused prejudice to the accused.

## Conclusion

The court upheld the convening authority’s Article 25 discretion where the record showed time-driven efforts to assemble an available panel and, at most, an informal preference to include women in a sensitive case, without evidence of gender-based court-packing, systematic exclusion, or prejudice to the accused.


United States v. Smith, 27 M.J. 242 (C.M.A. 1988)