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A SPCM panel of at least three not unconstitutional
(Thanks to Volokh Conspiracy) we have Sanford v. United States, No. 08-5402 (D.C. Cir. 13 November 2009), in which the court held that a SPCM with less than six members is not unconstitutional. The court notes that:
This court has recognized that the standard of review in non-custodial collateral attacks on court-martial proceedings is “tangled.” United States ex rel. New v. Rumsfeld, 448 F.3d 403, 406 (D.C. Cir. 2006) (“New II”).
Sanford had been arguing that the government had the burden to demonstrate reasons why there should not have been at least six members on his court-martial panel, in accordance with Ballew v. Georgia, 435 U.S. 223 (1978). The district court dismissed Sanford’s case, and he appealed. The circuit court ultimately concluded that the burden was on Sanford to show reasons why there was a constitutional violation and that because he’d not done so, dismissal was proper. Thus, a special court-martial can still have less than six members. It is uncertain if Sandford will appeal.
The military appellate history of the case is:
United States v. Sanford, 2006 WL 4571896 (N-M. Ct. Crim. App. Nov. 6, 2006); pet. denied 64 M.J. 428 (C.A.A.F. 2007).