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9. Court-Martial Personnel

Chapter 9

Court-Martial Personnel

 

  1.       Introduction

  2.       Convening Authority

  3.       Panel Selection

  4.       Panel Characteristics

  5.       Panel Member Excusal

  6.       Replacement Members

  7.       Panel Members Role at Trial

  8.       Impanelment

  9.       Military Judges

  10.       Expanded Judicial Powers and Remedial Action

  11.       Counsel

  12.       Accused

  13.       Other Court-Martial Personnel

  14.       Appendix-Court-Martial Personnel Summary

  15.       Appendix-Pretrial Flowchart

 

I.Introduction

A.2016 Military Justice Act (2016 MJA).  The 2016 MJA made significant revisions to court-martial panel requirements and other court-martial personnel.  Because of the systemic nature of the changes, practitioners should review the new rules with an eye toward how they will interact with rules that have not changed.

1.Major Changes.  There were major changes to Article 16 (changed definition of courts-martial), Article 19 (changed types of special courts-martial), Article 25 (changed options and procedures for forum election), Article 26a (created office of a military magistrate), and Article 29 (added guidance for authorization of alternates).  Counsel should also review Art 41 (challenges).  Counsel should also be aware that the major implementing Rules for Courts-Martial have changed significantly.  Counsel should review Rule 501 (composition of courts-martial, implementing Article 16), Rule 502 (establishing qualifications for members, alternates, judges, magistrates, and counsel), Rule 503 (detailing procedures for members and alternates, detailing requirements upon election of enlisted panel, and detailing of military judges and magistrates), Rule 504 (convening orders-no major changes), Rule 505 (changes of members-no major changes), Rule 912 (minor amendments to voir dire procedure), Rule 912A (major amendments to the method of determining members and alternates), and Rule 912B (major amendments to procedures to excuse and replace members after impanelment).

2.Effective Dates.  The date of referral of charges and their specifications will govern rules concerning convening, assembly, and impaneling the court-martial.  Cases referred on or after 1 January 2019 will use the new rules.  Counsel should consult the sentencing chapter for a discussion of how the procedural options an accused has on sentencing are partly dependent upon the forum elections of the accused.

3.Deskbook Revision Methodology.  This edition is a major change focused on the 2016 MJA.  As of the date of publication, no appellate cases have been decided under the 2016 MJA.  To the extent possible, this revision will discuss the likely application of cases contained herein under the 2016 MJA.

B.The military justice process.  Congress enacted the Uniform Code of Military Justice (UCMJ) to provide a coherent, fair system of criminal justice within the military.  The President was granted significant authority to craft rules of procedure for this system.  Those rules are entitled Rules for Courts-Martial (R.C.M.).  The UCMJ and the RCMs are grouped together in the Manual for Courts-Martial

C.A Court-Martial.  A court-martial exists temporarily and then is permanently adjourned.  The court is called into life, or “convened,” by an officer who has been given such power by Congress, usually by virtue of position (e.g., a commander of an Army division is, under Article 22, UCMJ, authorized to convene a general court-martial).  These commanders are “convening authorities” and they breathe life into these impermanent courts with a “convening order.”  The convening order details members to a court-martial.  A “standing” court-martial panel may be convened for a certain period of time.  Because courts-martial are temporary courts, a standing panel only springs to life to hear cases referred to it during the period for which the members are detailed.  A panel might also be convened only to hear a specific case. 

D.LEVELS OF COURTS-MARTIAL.  Congress established three levels of courts-martial:  General (GCM), Special (SPCM), and Summary (SCM).  The levels of court differ according to the jurisdictional limitations on punishment they can impose.  Punishments can include confinement, punitive discharge, forfeitures, reduction (enlisted only), hard labor without confinement (enlisted only), reprimand, a fine, and death for certain offenses. The characteristics of each type of court-martial are set out below:

1.Summary Courts-Martial (Arts. 20 and 24).  This, the lowest level of court-martial, is accorded less procedural protection.  Military judges do not preside over these proceedings, there is no right to defense counsel, and the “court” is composed of one officer, usually a non-lawyer.  However, the accused can decline an SCM.  Article 20b of the 2016 MJA clarifies that a SCM is a non-criminal forum and a conviction is not a criminal conviction.  The maximum punishment allowed is 1 month confinement, hard labor without confinement for 45 days, restriction for 2 months, or forfeiture of 2/3 pay (a Soldier above the rank of SPC may not be confined or given hard labor without confinement, or reduced except to the next pay grade).  See R.C.M. 1301 et seq. and DA Pam 27-7 for procedures.

2.Special Courts-Martial (Arts. 19 and 23).  Similar to a civilian “misdemeanor” court, the maximum punishment that can be adjudged at a SPCM is limited. 

a.Court with members.  A SPCM consists of four members and a military judge.  The maximum sentence that may be adjudged is a bad conduct discharge, reduction to the lowest enlisted grade (E-1), confinement for one year, and forfeiture of two-thirds pay per month for one year. 

b.Court with military judge

(1)By election.  An accused may elect trial by military judge.  Additionally, with consent of both parties, judge may appoint a magistrate to hear the case.  The maximum sentence is the same as that which may be imposed by members.

(2)By referral.  A convening authority may refer a case directly to a SPCM.  In that event, the maximum punishment is further limited to confinement of no more than six months, and no more than 6 months of forfeiture of pay.  No punitive discharge may be imposed.  Other lawful punishments may be imposed.

3.General Courts-Martial (Arts. 18 and 22).  Reserved for the more serious offenses, a GCM may adjudge the maximum punishment allowed for a particular offense (e.g., death for murder).  A trial with panel members shall consist of eight members.  If a member is excused after impanelment, the court-martial may proceed with no fewer than six members.  Only a GCM has jurisdiction to try an offense under Article 120(a), 120(b), 120a(a), 120b(b), 125, or attempts to commit one of the listed offenses.  See Article 18, UCMJ.

E.Selected Issues.

1.Forum Election Rights.  An enlisted accused has the right to elect the panel composition.  The panel election right extends to a panel with all officer members, or a panel with at least 1/3 enlisted member representation.  Absent the election of the accused, the panel will be composed of members as determined by the detailing of the convening authority, and the operation of the Rules.

2.Authorization of Alternates.  In order to maintain the required numbers to proceed, a convening authority may authorize alternates who will hear the evidence.  Alternates will not deliberate unless a member is excused.

3.Procedures for identification of members, alternates, and excusal of excess members.  A convening authority must detail members in sufficient numbers to ensure that the court-martial may be impaneled with the required numbers, plus any authorized alternate.  Members that remain in excess of the required numbers must be excused.  Rules 912 and 912A provide procedures for random numbering to identify the members, any alternates, and excusal of excess members.  Additionally, Rule 912A provides procedures to identify the enlisted members, in the event the accused elects enlisted representation.

II.CONVENING AUTHORITY

A.General.  The power to convene a court-martial is the power to designate panel members for the purpose of hearing cases properly brought before it.  Referral is the power to send preferred charges for trial before a court-martial convened for that purpose.  See Swaim v. United States, 165 U.S. 553, 556–57 (1897), quoting Runkle v. United States, 19 Ct. Cl. 396, 409 (1884) (“[T]he convening of a court-martial is simply the giving of an order to certain officers to assemble as a court, and, when so assembled, to exercise certain powers conferred upon them by [statute].”)

B.Source of Power to Convene

1.Constitutional.  The President has convening authority flowing from his constitutional role as commander in chief.  Runkle v. United States, 19 Ct. Cl. 396, 409 (1884), rev'd on other grounds, 122 U.S. 543 (1887) (applying Article 65 of the Articles of War, 4 Stat. L., 417, ch. 179)(“By the Constitution the President is the commander-in-chief of the armies of the United States. Courts-martial are the creatures of orders; the power to convene them being an attribute of command. As commander-in-chief the President is authorized to give orders to his subordinates, and the convening of a court-martial is simply the giving of an order to certain officers to assemble as a court, and, when so assembled, to exercise certain powers conferred upon them by the Articles of War.”)

2.Statutory.  Assignment to a position enumerated in Articles 22 through 24 gives the commander convening authority by operation of law.  See Article 22, UCMJ (general courts-martial); Article 23, UCMJ (special courts-martial); and Article 24, UCMJ (summary courts-martial).

a.An officer assuming command of a unit possesses the convening authority inherent in the command position.  In United States v. Ross, No. 36139, 2006 CCA LEXIS 358 (A.F. Ct. Crim. App. Dec. 13, 2006) (unpublished), an Air Force colonel (O-6) assumed command over the Third Air Force, which was a GCMCA.  The assumption of command was in violation of applicable Air Force regulation, and there were two flag officers who could have assumed command instead of the colonel.  The colonel, acting as the GCMCA, referred the case to trial by general court-martial.  The accused was arraigned, and the case was recessed for 20 days.  During the recess, command of the Third Air Force passed to a major general.  The new GCMCA replaced five of the nine panel members in the case.  The accused was re-arraigned and tried.  At no time did the accused object to the original referral.  The AFCCA held that the court-martial was properly convened, reasoning that when an officer is in command, he may exercise the court-martial convening power that attaches to that command.  Furthermore, although the appointment violated the Air Force regulation, jurisdiction still attached.  “[A]ppellate courts are not justified in attaching jurisdictional significance to service regulations in the absence of their express characterization as such by Congress.”  Finally, any error in the referral was cured by the successor GCMCA who took action on the sentence. See also United States v. Stamper, No. 36191, 2006 CCA LEXIS 364 (A.F. Ct. Crim. App. Dec. 15, 2006) (unpublished).

3.By designation. 

a.Under the Articles, the President or Secretary concerned may designate a convening authority.  In United States v. Smith, 69 M.J. 613 (A. Ct. Crim. App. 2010), the acting Commander, Fort Lewis, referred charges against the accused to court-martial.  On appeal, the defense argued the commander was not designated as a court-martial convening authority by the Secretary of the Army (SECARMY) and did not have jurisdiction to take action in this case.  Although Article 22 does not give statutory authorization for an installation commander to serve as a GCMCA, it does allow for the applicable Service Secretary to designate other commanders as GCMCAs.  In 1981, the SECARMY had issued two General Orders pertaining to Fort Lewis.  In Gen. Order No. 10 (dated 9 April 1981), the Commander, “Fort Lewis” was designated a GCMCA; in Gen. Order No. 27 (dated 13 November 1981) the “Commander, I Corps and Fort Lewis” was designated a GCMCA.  In reviewing these orders, the ACCA noted the SECARMY merely took action to “designate” GCMCAs, without replacing or otherwise affecting prior orders.     

4.Designation as a “separate” unit.  Articles 22 through 24 provide that smaller “separate” commands may have convening authority ordinarily reserved for larger units.  United States v. Hundley, 56 M.J. 858 (N-M. Ct. Crim. App. 2002), dealt with a battalion command that had been designated as “separate” by the Secretary concerned.  The court held that under Article 23(7), UCMJ, its commanding officer had authority to convene a special court-martial. 

5.Revocation of authority to convene. 

a.Presidential or secretarial designation as a convening authority may be revoked by proper authority.  United States v. Hardy, 60 M.J. 620, illustrates this.  In that case, the CA had been designated by the service Secretary.  Between referral and the convening authority’s (CA) action on the case, the Secretary of the Air Force issued an order which arguably revoked the CA’s authority to convene courts-martial.  AFCCA held, although the order was inartfully drafted, it did not revoke the CA’s authority and, additionally, the Secretary of the Air Force issued a clarifying order proving his intent was to not revoke the CA’s power.  AFCCA held, in the alternative, even if the Secretary of the Air Force had intended to revoke the CA’s authority, the commander still had statutory authority to convene courts-martial under Article 22(a)(7) as a commander of an air force:  “No administrative action is required to effect convening authority on a commander once he or she is placed in a command position at a numbered air force.”  United States v. Hardy, 60 M.J. 620 (A.F. Ct. Crim. App. 2004). 

C.Decision of CA is personal to CA.

1.Decision to refer is personal to the CA.  United States v. Guidi, No. 200600493, 2007 CCA LEXIS 10 (N-M. Ct. Crim. App. Jan. 30, 2007) (unpublished).  The signature on the referral portion of the accused’s charge sheet was illegible, and noted next to the signature, in writing was “1st Sgt By direction.”  Typed next to the signature was “For the Commanding Officer.”  The additional charge sheet was executed in the same manner, except the notation “1st Sgt” was lacking.  The court concluded that a Marine Corps First Sergeant must have signed the charge sheets.  However, the court held that it is not a jurisdictional defect for the convening authority to allow another to sign on his behalf.  The N-MCCA stated, “[p]rovided his actions are personally made, it is not necessary that he actually take hold of a pen.”

D.Power over a member of another command

1.Referral.  After allegations of an improper relationship with a midshipman at the Naval Academy, accused was reassigned.  The new GCMCA preferred fraternization charges which the military judge dismissed for failure to state an offense.  The Naval Academy SJA, on behalf of the old GCMCA, requested the new GCMCA refer charges anew based on additional misconduct.  After further investigation, the new GCMCA did not re-refer charges but stated he would make the accused available if the old GCMCA desired to refer charges.  The old GCMCA referred charges which the military judge dismissed without prejudice based on an improper referral.  The N-MCCA held “a command other than the one to which the accused is attached may refer charges against the accused to a court-martial” (citing RCM 601(b)).  United States v. Jones, 60 M.J. 917 (N-M. Ct. Crim. App. 2005)

2.Transfer of convening authority after referral.  In general, authority over a referred case may be transferred to a parallel convening authority.  See R.C.M. 601(g).  However, such transfer must follow the procedures specified in the rules.  In Brown, the SJA prepared post-trial advice in a case for a convening authority other than the one that referred the case.  The new (different) convening authority was a commander of an unrelated SPCMCA, and was not a successor in command.  Action taken to approve the sentence by a different SPCMCA than the one who convened the accused’s court-martial was error, because the action violated the terms of Article 60(c)(1), UCMJ, and R.C.M. 1107(a).  The court rejected the Government’s argument that the accused needed to demonstrate material prejudice to obtain relief.  The clemency stage was an accused’s best opportunity to obtain sentence relief, and the Government was required to follow the statutory and regulatory scheme as written.  United States v. Brown, 57 M.J. 623 (N-M. Ct. Crim. App. 2002).

E.Adoption of court-martial panel members by acting Commanders/successors in command.  In general, the person in command of the relevant convening authority (as defined in Articles 22-24) may take any action on the case, without regard to whether that person is the commander who initially referred the case.  However, Article 25(e)(2) requires that in the case of selection of panel members, the convening authority must select those members who are best qualified “in his opinion.”  Under the cases, adoption of a pre-existing panel is generally presumed where a successor in command refers a case to a pre-existing panel.  While service regulations govern the selection process, violation of a regulation may not spell defeat for the Government. 

1.Identification of commander.  A court engages in a functional analysis looking to who actually was in command at the time the action was taken.  United States v. Yates, 28 M.J. 60 (C.M.A. 1989)See also United States v. Jette, 25 M.J. 16 (C.M.A. 1987) (concern is for realities of command, not intricacies of service regulations).  

2.Service Regulations.  Army, AR 600-20; Navy/U.S.M.C., JAGMAN - JAGINST 5800.7C; Air Force, AFR 35-34.

3.Panel adoption by successor in command.  Adoption of the members can generally be presumed where a successor in command refers a case to a pre-existing panel.  United States v. Gilchrist, 61 M.J. 785 (A. Ct. Crim. App. 2005).  ACCA, in a published opinion, clarifies its position, stating “[a]bsent evidence to the contrary, adoption can be presumed from the convening authority’s action in sending the charges to a court-martial whose members were selected by a predecessor in command.”  No requirement exists for a convening authority or an acting convening authority to expressly adopt panel members selected by his predecessor.  See also United States v. Starks, No. 20020224 (A. Ct. Crim. App. Mar. 10, 2004) (unpub.) (concurring with NMCCA in Brewick that “while there is no explicit statement of adoption of the selection of court members by the successor-in-command, we are not aware of any authority that so requires.”)  See also United States v. Brewick, 47 M.J. 730 (N-M. Ct. Crim. App. 1997) (holding “[t]o the extent an ‘adoption’ is required [where a successor in command refers a case to a CMCO who members were selected by a predecessor] or helpful, we can presume as much from [the successor’s] action in sending the charge to that court-martial, absent evidence to the contrary.”).

4.Best practices.  Judge advocates should have commanders make a formal adoption decision.  Prior cases overruled by Gilchrist noted that the SJA could easily ensure that Article 25 requirements were met, and the rationale behind those cases is still sound reasoning, even if not the law.  See United States v. Meredith, No. 20021184 (A. Ct. Crim. App. Jan. 27, 2005) (unpub.); United States v. Jost, No. 20030975 (A. Ct. Crim. App. Mar. 29, 2005) (unpub.).  These cases held that a successor in command must expressly select members selected by the previous commander.  “By the simple expedient of including and correctly referencing the predecessor’s recommended CMCO in the referral document, the SJA can ensure that the codal responsibilities of the convening authority are clearly met.” 

F.Limitations on Joint CommandersUnited States v. Egan, 53 M.J. 570 (A. Ct. Crim. App. 2000).  In a special court-martial convened by Air Force colonel (commander of a EUCOM joint unit), the accused, an Army Soldier, was convicted of drug use and distribution.  The SPCMCA approved the sentence, which included a BCD.  ACCA held the SPCMCA did not have the authority under the applicable joint service directive to convene a special court-martial empowered to adjudge a BCD in the case of an Army soldier.  BCD set aside; case further modified on other grounds.

G.Limited Jurisdiction of a Special Court-Martial

1.Punishment limitations.  The 2016 MJA provides for different limitations than those under the legacy system.

a.Legacy system. A special court-martial could only impose the maximum of one year confinement, two-thirds forfeiture of pay per month for a period not exceeding a year, reduction to E-1, and a bad conduct discharge where a military judge and qualified defense counsel were detailed to the court-martial, and a verbatim record was prepared.  Under the 2016 MJA, the law makes no provision for a COJ and the SJA to prepare a pretrial advice “following generally the format of RCM 406(b).”)  See also United States v. Scott, 59 M.J. 718 (A. Ct. Crim. App. 2004).  (“[A]ll Army SPCMs are empowered to adjudge a BCD unless the convening authority expressly states that a particular SPCM is not so empowered.)

b.2016 MJA.  A special court-martial may impose the maximum punishments authorized under Article 19 (the same punishments under the legacy system) so long as the case was referred to a court-martial composed of four members and a military judge.  There is no option to refer a case to members only.  If the case is referred for trial by judge alone, then the maximum punishment is further limited to confinement of no more than six months, and no more than 6 months of forfeiture of pay.  No punitive discharge may be imposed.  Other lawful punishments may be imposed.

2.Mandatory Minimums.

a.Limited SPCMCA authority to refer a non-mandatory capital offense to SPCM.  United States v. Henderson, 59 M.J. 350 (C.A.A.F. 2004).  SPCMCA referred alleged violation of Article 110(a), UCMJ (willfully hazarding a vessel, a nonmandatory capital offense).  Article 19, UCMJ provides that a SPCM has jurisdiction over capital offenses “under such regulations as the President may prescribe.”  The President, in RCM 201(f)(2)(c), authorizes a SPCMCA to refer a nonmandatory capital offense only with the permission of the GCMCA.  That permission was neither sought nor granted in this case.  The CAAF held the referral was jurisdictional error.  The CAAF rejected three Government arguments:  first, that the so-called “evolution” in the law applicable to jurisdictional defects does not extend to this situation; second, that the Pretrial Agreement (PTA) in the case was a functional equivalent of a referral of a noncapital offense; and third, that the referral of the nonmandatory capital offense was also an implicit referral of the noncapital lesser-included offense.  Findings and sentence set aside. 

b.Limited SPCMCA authority to refer certain sex offenses.  Article 18 provides that a GCM has sole jurisdiction over certain sex offenses.  Further, Article 53 specifies mandatory minimum of a dismissal or dishonorable discharge for conviction of certain sex offenses.  R.C.M. 1002(f)(2) implements the statute.

H.When Convening Authority is Disqualified by Virtue of Accuser Status

1.General Rule.  A convening authority must be reasonably impartial in order decide whether to refer a case.  An “accuser” is not impartial.  Under Article 1(9), UCMJ, “accuser” means a person who (1) signs and swears to charges; (2) directs that charges nominally be signed and sworn to by another; or (3) has an interest other than an official interest in the prosecution of the accused.  See also R.C.M. 601(c) discussion.  If a convening authority is also the accuser in a case, then the convening authority has limited referral authority.  The convening authority cannot refer charge(s) to a special or a general court-martial; however, he is not necessarily disqualified from convening a summary court-martial or initiating administrative measures (Article 15, memorandum of reprimand, Bar to Reenlistment, etc.).  R.C.M. 1302(b).  If the convening authority has a personal (or other than official) interest in a case, there are additional limitations on what actions he may take. 

2.Statutory disqualification.  If a convening authority signs and swears to charges or directs another to do so, she is said to be statutorily disqualified.  An accuser who is statutorily disqualified may not refer a case to a general or special court-martial but may appoint an Article 32 Investigating Officer or forward the case with a recommendation as to disposition as long as the disqualification is noted.  A convening authority who becomes an accuser by virtue of preferring charges in an official capacity as a commander is not, per se, disqualified from appointing an Article 32 officer to investigate those charges.  See McKinney v. Jarvis, 46 M.J. 870 (A. Ct. Crim. App. 1997). 

3.Personal disqualification.  A convening authority who has an “other than official interest” in the case is said to be personally disqualified.  Besides being denied the power to refer a case for trial, she also may not appoint an Article 32 Investigating Officer or make a recommendation when forwarding the case for action. 

a.Test:  Whether a reasonable person could impute to the convening authority a personal interest or feeling in the outcome of the case.  United States v. Jeter, 35 M.J. 442 (C.M.A. 1992); see also United States v. Gordon, 2 C.M.R. 161 (1952); United States v. Crossley, 10 M.J. 376 (C.M.A. 1981); United States v. Thomas, 22 M.J. 388, 394 (C.M.A. 1986) (listing examples of unofficial interests that disqualified CAs).

b.Examples.

(1)Relationship to the accused.  SPCMCA forwarding the charges must disclose any potential personal interests, and if disqualified, forward without recommendation.  United States v. Nix, 40 M.J. 6 (C.M.A. 1994) (DuBay hearing ordered where special court-martial convening authority’s (SPCMCA’s) girlfriend (later spouse) and the accused shared relationship characterized by innuendo and sexual banter, and the record failed to establish that SPCMCA acted with proper motives.)

(2)Accused and CA both members of the same Boy Scout organization.  United States v. Dinges, 55 M.J. 308 (C.A.A.F. 2001).  A convening authority who becomes an accuser by virtue of having such a close connection to the offense that a reasonable person would conclude he had a personal interest in the case is disqualified from taking further action as a convening authority.  At a GCM the accused was convicted of sodomy arising out of his activities as an assistant scoutmaster with a local troop of the Boy Scouts.  The Scout Executive terminated his status as an assistant, and contacted the CA (who was a district chairman of the Big Teepee District, Boy Scouts of America) about the matter.  Prior to preferral of charges, the accused was assigned to the CA’s wing (a special court-martial convening authority level command).  The CAAF ordered a DuBay hearing to determine whether the convening authority had an other than official interest that would disqualify him under Article 1(9), UCMJ, and United States v. Nix, 40 M.J. 6 (C.M.A. 1994).  Based on facts gathered at the DuBay hearing, the CAAF held the SPCMCA did not become an accuser because he did not have such a close connection to the offense that a reasonable person would conclude he had a personal interest in the case.  As such, he was not disqualified from taking action as a CA.

(3)CAs suspected of similar offenses may be disqualifiedUnited States v. Kroop, 34 M.J. 628 (A.F.C.M.R. 1992), aff’d, 38 M.J. 470 (C.M.A. 1993).  Officer charged with adultery.  CA was suspected of similar, albeit unrelated, offenses.  In an “abundance of caution over the need to preserve the appearance of propriety” court set aside prior action of CA (approved sentence) and remanded for new SJA’s advice and action by different CA.  United States v. Anderson, 36 M.J. 963 (A.F.C.M.R. 1993).  Findings and sentence did not have to be set aside on grounds the CA was himself suspected of misconduct.  Conduct in question was unrelated to accused’s misconduct.  United States v. Williams, 35 M.J. 812 (A.F.C.M.R. 1992) aff’d, 41 M.J. 134 (C.A.A.F. 1994) (Accused convicted of three rapes, robbery, sodomy, and aggravated assault was not entitled to disqualification of CA where CA was himself suspected of sexual misconduct.  Suspected misconduct of CA was of a non-violent nature.  No danger of “psychological baggage” being carried over to prejudice the accused.)

(4)Disqualification and potential UCIUnited States v. Haagenson, 52 M.J. 34 (C.A.A.F. 1999).  Accused, a CW2, was charged with fraternization and her case initially referred to a SPCM, convened by the SPCMCA who was also the accuser.  The SPCMCA later withdrew the charge, on the basis of the TC’s advice, and referred it to an Article 32 investigation, ultimately sending it forward with a recommendation for a GCM.  Evidence revealed that the withdrawal from a SPCM may have been prompted by the XO of the Base Commander, the SPCMCA’s superior, who reportedly yelled “I want [accused] out of the Marine Corps” at the SPCMCA.  The military judge found that there was “no support” for the defense contention that command influence tainted the referral, but the CAAF disagreed, finding insufficient evidence to rule either for or against the defense because the record was not properly developed.  Case remanded for a fact-finding proceeding on issue of whether SPCMCA became an accuser.

c.Violations of orders of the convening authority. 

(1)General RuleViolation of CA orders does not give the CA a personal interest in the outcome of the case.  United States v. Tittel, 53 M.J. 313 (C.A.A.F. 2000).  The accused was convicted of shoplifting and several other offenses and processed for elimination when he was caught shoplifting again from the base PX.  The SPCMCA signed an order barring the accused from entering any Navy PX, which the accused violated.  The CAAF adopted the Navy court’s reasoning that the order was a routine administrative directive and that the CA was not an “accuser” and that, in any event, the accused waived the issue.

(2)United States v. Byers, 34 M.J. 923 (A.C.M.R. 1992) set aside and remanded, 37 M.J. 73 (C.M.A. 1993), rev’d as to sentence, 40 M.J. 321 (C.M.A. 1994), sent. aff’d. on remand (A.C.M.R., 23 Jan. 1995) (unpub.).  Accused charged under Article 90, UCMJ for violating commanding general’s (CG) order not to operate privately owned vehicle on post.  Same CG referred the charge to a GCM.  CG was not an accuser and involvement was official and not personal. 

(3)See also United States v. Cox, 37 M.J. 543 (N.M.C.M.R. 1993).  Accused charged under Article 90, UCMJ for violating CA’s restriction order.  Imposition of pretrial restriction is an “official act” which does not connect the CA so closely with the offense that a reasonable person would conclude he had anything other than an official interest in the matter. 

d.Official involvement does not generally make CA an “accuser.”

(1)United States v. Ashby, 68 M.J. 108 (C.A.A.F. 2009).  Convening authority appointed another General Officer to conduct a command investigation board into an aircraft accident that killed 20 civilians riding a cable car in the Italian Alps.  The accused was eventually court-martialed as the pilot of the aircraft.  Convening authority closely monitored the investigation, calling the board on a daily basis and making recommendations about areas of further inquiry; charges were not preferred until the investigation was completed.  CAAF held the convening authority not become an accuser based on his hands-on involvement in the investigation, noting the repeated contacts did not show a “personal rather than a professional interest.”

(2)United States v. Arindain, 65 M.J. 726 (A.F. Ct. Crim. App. 2007).   The convening authority, an Air Force GCMCA, referred charges of felony murder, rape, and forcible sodomy to a GCM; the accused was only convicted of unpremeditated murder.  Three months after the trial, the convening authority wrote an e-mail to the SJA saying:  “My opinion, tho: this was not a sexual assault case . . . we all think they had consensual sex and she expired during their rather abnormal acts.”  E-mail was disclosed to the defense and they submitted it as part of their clemency.  On appeal, defense argued the convening authority committed prosecutorial misconduct by referring “charges for which he did not have reasonable grounds to believe that offenses triable by a court-martial had been committed.”  AFCCA affirmed, reasoning that the SJA provided pretrial advice that provided the GCMCA with an “analysis of the available evidence . . . , and advised him that the evidence supported the specifications and referral was warranted.”  Also, the Article 32 investigating officer concluded that reasonable grounds existed to believe the accused committed the offenses.  “Sufficient information existed at the time of referral for the convening authority to make his decision, and while his choice of language . . . was regrettable, we do not find that [his e-mails] cast doubt on the propriety of the referral . . . .”

(3)United States v. Diacont, No. 200501425, 2007 CCA LEXIS 94 (N-M. Ct. Crim. App. Mar. 20, 2007) (unpublished).  Convening authority was not personally disqualified when he visited the accused and several others in pretrial confinement and asked them “how they were doing, whether they had called their families recently, and what the command could have done to prevent the circumstances in which they found themselves.” 

(4)United States v. Fisher, 45 M.J. 159 (C.A.A.F. 1996).  CA’s mid-trial statements critical of defense counsel will not invalidate previous pretrial actions of selecting members and referring case to trial when CA’s statements do not indicate that he was other than objective in processing court-martial.  CA appeared as a Government witness on a MRE 313 motion to suppress a urinalysis.  During the recess, the CA stated that “any lawyer that would try to get the results of the urinalysis suppressed was unethical.”  No taint attributed to selection process.

(5)CA testimony at trialUnited States v. Gudmundson, 57 M.J. 493 (C.A.A.F. 2002).  Convening authority testified on dispositive suppression motion.  Defense did not request that convening authority disqualify himself from taking post-trial action in the case but alleged on appeal that he should have disqualified himself.  The CAAF held that the defense waived the issue by failing to raise it below, in light of the fact that the defense was fully aware of the ground for potential disqualification but chose not to raise it either at trial or in its post-trial submissions.  In dicta, CAAF reviews law in area.  “A convening authority’s testimony at trial is not per se disqualifying, but it may result in disqualification if it indicates that the convening authority has a ‘personal connection with the case.’  However, ‘if the [convening authority’s] testimony is of an official or disinterested nature only,’ the convening authority is not disqualified.”

e.Prosecutorial zeal may make the CA an “accuser.”

(1)General rule.  A CA is an “accuser” when the convening authority is so closely connected to the offense that a reasonable person would conclude that the CA had a personal interest in the matter - that it would affect the CA’s ego, family, or personal property, or that it demonstrates personal animosity beyond misguided zeal.

(2)United States v. Voorhees, 50 M.J. 494 (C.A.A.F. 1999).    CA did not become an accuser even though he threatened to “burn” accused if he did not enter into pretrial agreement.

(3)United States v. Ortiz, NMCCA No. 20170330 (15 Feb 2018) (unpub.).  A reasonable member of the public could conclude that the convening authority had a personal interest in the matter, and therefore was a type 3 accuser, where the convening authority forcefully and repeatedly stated that continued hazing within the unit was a personal affront (e.g., he had been “flipped the bird” by offenders) and that he would personally handle such cases, and had laid out several other extreme measures he would take to ensure that hazing stopped.

f.CA as secondary victim does not make CA “accuser.” United States v. Rockwood, 52 M.J. 98 (C.A.A.F. 1999).  Accused who was critical of Operation Uphold Democracy in Haiti attempted to “inspect” a prison in order to draw attention to the plight of its inmates.  Accused was charged with a variety of offenses, to include disrespect and being absent from his place of duty.  He claimed at trial that the entire command was precluded from acting in the case because his behavior so directly challenged his command’s actions that the CA, the commanders, and the members had a conflict of interest.  CAAF held that the accused’s personal assertion of such a conflict was insufficient; he produced no evidence that the CA had anything other than an official interest in the case, that there was command influence under Article 37, UCMJ, or that the members were disqualified from serving.

4.Effect of Convening Authority disqualification

a.Before trial

 

If statutorily disqualified -

If personally disqualified -

MAY appoint preliminary hearing officer (PHO)

May NOT appoint PHO

MAY forward with recommendation as to disposition.  Recommendation must note statutory disqualification.

May forward but MAY NOT make a recommendation as to disposition (must note personal disqualification)

May dismiss charges

May dispose of case via other means

May convene a SCM, but NOT a SPCM or a GCM

 

b.Waived if not raised.  Accuser issue is not jurisdictional. Failure to raise at trial may result in waiver.  United States v. Shiner, 40 M.J. 155 (C.M.A. 1994) (assuming CA was an accuser, his failure to forward the charges to the next higher level of command was a nonjurisdictional error, which was waived by accused’s failure to raise it at court-martial).  See also Tittel; United States v. Voorhees, 50 M.J. 494 (C.A.A.F. 1999).  CA did not become an accuser by threatening to “burn” accused if he did not enter into PTA; even if he did, accused affirmatively waived issue at trial. 

c.The “Junior Accuser” Concept.  Commander who is subordinate to “accuser” may not convene a general or special court-martial.  See R.C.M. 504(c)(2) and Articles 22(b) and 23(b): “If . . . such an officer is an accuser, the court shall be convened by superior competent authority.”  See also United States v. Corcoran, 17 M.J. 137 (C.M.A. 1984).

5.Post-trial Implications

a.CA disqualificationUnited States v. Davis, 58 M.J. 100 (C.A.A.F. 2003).  Accused was convicted of wrongful drug use.  In its RCM 1105 submission, the defense alleged that the convening authority publicly commented that “people caught using illegal drugs would be prosecuted to the fullest extent, and if they were convicted, they should not come crying to him about their situations or their families[’].”  Government did not dispute that the convening authority made the statements.  After reviewing the law on disqualification of convening authorities to take post-trial action, and applying a de novo standard of review, the CAAF held that the statements displayed an inelastic attitude toward the performance of the convening authority’s post-trial responsibilities that disqualified him from taking post-trial action on accused’s case.  The comments “lacked balance and transcended a legitimate command concern for crime or unlawful drugs.”  Action set aside, record returned to the Air Force TJAG for a new review and action before a different convening authority.

b.Legal officer disqualificationUnited States v. Edwards, 45 M.J. 114 (C.A.A.F. 1996).  An O-4 officer who served as the legal officer for the case in the pretrial and post-trial stages was disqualified from preparing the post-trial recommendation.  Officer preferred 3 charges and 31 specifications of larceny, forgery, and false-identity offense against accused; conducted a videotaped interrogation of accused that resulted in a confession; acted as evidence custodian during the pretrial stages of the court-martial; and defense counsel only became aware of legal officer’s involvement after trial and completion of post-trial recommendation.

III.Panel Selection

A.In general.  Virtually any member of the Armed Forces is eligible to serve on a court-martial panel.  However, the CA may only select those members who, in the CA’s personal opinion, are “best qualified” in terms of the criteria in Article 25, UCMJAge, Experience, Education, Training, Length of Service and Judicial TemperamentUnited States v. Hodge, 26 M.J. 596 (A.C.M.R. 1988), aff’d, 29 M.J. 304 (C.M.A. 1989) (holding cross sectional representation of military community on court-martial panel is not required by the Constitution); see also United States v. Carter, 25 M.J. 471 (C.M.A. 1988) (holding no Sixth Amendment right that membership reflect a representative cross-section of the military population).

B.Challenges to Panel Selection Process

1.Proving the use of inappropriate criteria or command influence in panel selection. 

a.Traditional Approach.

(1)The burden.  The defense shoulders the burden of establishing the improper exclusion of qualified personnel from the selection process.  Once the defense establishes such exclusion, the Government must show by competent evidence that no impropriety occurred when selecting the accused’s court-martial members.  United States v. Kirkland, 53 M.J. 22, 24 (C.A.A.F. 2000).

(2)The standard of proof.  Generally, the standard on both sides is a preponderance of the evidence.  RCM 905(c)(1). 

b.Emerging Trend

(1)The burden.  Panel stacking cases will be evaluated using UCI as a framework to determine whether there was some evidence of improper selection.  Riesbeck evaluated a panel selection issue under the prism of apparent UCI.  In that case, the court found that it was important to the convening authority to have a large number of female panel members.  The court evaluated whether the accused had raised the issue, after which the burden shifted to the government to prove beyond a reasonable doubt that there was a benign motive for the selection.  United States v. Riesbeck, 77 MJ 154 (CAAF 2018).  To raise an issue under Article 37, UCMJ, the accused must show “some evidence” (i.e., facts which, if true, constitute unlawful command influence, and that the alleged unlawful command influence has a logical connection to the court-martial, in terms of its potential to cause unfairness in the proceedings).  United States v. Biagase, 50 M.J. 143, 150 (C.A.A.F. 1999).  Once the issue is raised at the trial level, the burden shifts to the Government, which may either show that there was no unlawful command influence or show that the unlawful command influence will not prejudice the proceedings.  Id.  The court must be persuaded beyond a reasonable doubt that the findings and sentence will not be affected by command influence.  Id. at 151.

(2)Unlawful command influence is, generally, harder to establish, but, once established, it is harder for the Government to disprove prejudice to the accused.  United States v. Riesbeck, 77 MJ 154 (CAAF 2018)

c.Two general methods of proof. 

(1)Counsel may attack the array.  See, e.g., United States v. Nixon, 33 M.J. 433 (C.M.A. 1991) (panel of E-8s and E-9s creates an appearance of evil).  Second, counsel can mount statistical attacks on the array. See, e.g., United States v. Bertie, 50 M.J. 498 (C.A.A.F. 1999) (disproportionate number of high-ranking panel members did not create presumption of impropriety in selection).  See also United States v. Fenwrick, 59 M.J. 737 (A.F. Ct. Crim. App. 2003) (holding “the military judge may rely upon statistical evidence to discern a ‘subconscious’ desire by the convening authority to improperly exclude certain grades, [but] such statistical evidence must clearly indicate such an exclusion”).  

(2)Attacks on the nomination and selection memorandaSee United States v. Upshaw, 49 M.J. 111 (C.A.A.F. 1998); United States v. Roland, 50 M.J. 66 (C.A.A.F. 1999); and United States v. Kirkland, 53 M.J. 22 (C.A.A.F. 2000).

2.The convening authority’s responsibility to personally select members cannot be delegated.  United States v. Ryan, 5 M.J. 97 (C.M.A. 1978); United States v. McCall, 26 M.J. 804 (A.C.M.R. 1988) (military judge said “it sounds like somebody has already selected a list of people to take in to the convening authority and have him just kind of stamp it;” ACMR agreed).  But see United States v. Benedict, 55 M.J. 451 (C.A.A.F. 2001).  The Chief of Staff (CoS) submitted a final list of members to the CA, who then personally signed the convening order without asking any questions or making any changes.  Setting aside the decision of the Coast Guard Court of Criminal Appeals, the CAAF held that the CA personally selected the nine prospective members set forth by the CoS.  See Judge Effron’s dissent for a comprehensive discussion of the history of Article 25, UCMJ.

a.United States v. Hilow, 32 M.J. 439 (C.M.A. 1991). The division deputy adjutant general gathered a list of court member nominees who, in his opinion, supported a command policy of “hard discipline.”  Staff members can violate the provisions of Article 37, UCMJ.  Their errors will likely spillover to the CA.

b.Interlopers as a jurisdictional defectUnited States v. Peden, 52 M.J. 622 (A. Ct. Crim. App. 1999).  Where Member A was selected by CA but Member B was inadvertently placed on convening order, Member B was an “interloper” whose presence constituted jurisdictional error.  Convening authority not permitted to ratify presence of Member B after the fact.  Sentence set aside (accused had pleaded guilty).

3.If members of another command are selected, they must also be personally selected by the convening authorityUnited States v. Gaspard, 35 M.J. 678 (A.C.M.R. 1992) Accused was assigned to Fort Polk.  Commanding General, Fort Polk, was disqualified after talking to victim’s parents, so case convened by Commander, III Corps and Fort Hood, who referred case to a Fort Polk court-martial convening order (CMCO) with Fort Polk members.  Issue on appeal was whether Corps CG personally selected the Fort Polk members.  If not, court-martial was “fatally flawed.”  Case remanded for DuBay hearing.  But see successor in command cases supra.

C.Challenges to Panel Selection Criteria

1.In general.  The CA must use the Article 25 criteria to select panel members.  Article 25(d)(2) directs the convening authority to personally select members who are “best qualified” based on six criteria:  “age, education, training, experience, length of service, and judicial temperament.” United States v. Bartlett, 66 M.J. 426 (C.A.A.F. 2008).  Much litigation has revolved around the CA’s supplementing the Article 25 criteria with other criteria.  Some of these criteria are discussed below.  Although Bartlett did not explicitly overrule any precedent regarding the use of non-Article 25 criteria for the purposes of either including or excluding panel members, practitioners should exercise extreme caution in supplementing the Article 25 criteria.

2.Cross-Sectional Representation.  The commander may seek to have the panel’s membership reflect the military community.  See, e.g., United States v. Smith, 27 M.J. 242, 249 (C.A.A.F. 1988).  “[A] commander is free to require representativeness in his court-martial panels and to insist that no important segment of the military community – such as blacks, Hispanics, or women – be excluded from service on court-martial panels.”  CMA tacitly accepted as valid the CA’s effort “to have a mix of court members with command or staff experience” to have “some female representation on the panel.”

3.Inclusion Criteria

a.By Race.  Permissible if done for proper reason but not required.

(1) Convening authority may include members based upon their race so long as the motivation is compatible with Article 25, UCMJ.  United States v. Crawford, 35 C.M.R. 3 (C.M.A. 1964) (as to black NCO, it is exclusion that is prohibited, not inclusion).  See also United States v Smith, infra.   

(2) United States v. Bess, 80 M.J. 1 (C.A.A.F. 2020).  The convening authority’s failure to include African American members on a panel did not violate the accused’s Fifth Amendment equal protection rights or constitutes unlawful command influence, where, there was no evidence that the convening authority actually knew or had reason to know the races of the persons he detailed to the accused’s court-martial.  The Court explained that neither the Fifth Amendment nor the Article 25, UCMJ member selection criteria require an accused to have members of his own race included on his court-marital panel.

b.By Gender.  Permissible if for proper reason.

(1)United States v. Smith, 27 M.J. 242 (C.M.A. 1988).  CA may take gender (or race) into account in selecting court members if seeking in good faith to select that a court-martial panel that is representative of the military population.  But, evidence indicated a hidden policy of ensuring two “hardcore” females were on all sexual assault cases based on their “unique experience.”

(2)United States v. Lewis, 46 M.J. 338 (C.A.A.F. 1997).  In a case involving attempted voluntary manslaughter and assault on the accused’s wife, the convening authority did not “stack” the panel with female members when, in response to a defense request for enlisted members, two of original five female officers were relieved and one female enlisted member was added, resulting in a panel of five male and four female members.  Original panel had ten members, five of whom were females.

(3)United States v. Riesbeck, 77 MJ 154 (CAAF 2018).  Selection of a large number of females raised the appearance of court-martial stacking in a sexual assault case; once issue was raised, the government failed to rebut because it could introduce no evidence of a benign motive.

c.By Duty Position.  Convening authority may select based upon duty position (e.g., commanders) in a good faith effort to comply with Article 25 criteria. 

(1)United States v. White, 48 M.J. 251 (C.A.A.F. 1998).  CA issued a memorandum directing subordinate commands to include commanders, deputies and first sergeants in the court member applicant pool.  Eight of ten panel members for the accused’s trial were in command positions.  Court held CA did not engage in court packing absent evidence of improper motive or systematic exclusion of a class or group of candidates.  Court noted “best qualified” selection for command is close to “best qualified” under Article 25.  See Effron, J., and Sullivan, J., concurring in the result, but criticizing the majority’s willingness to equate selection for command with selection for panel duty.

(2)United States v. Cunningham, 21 M.J. 585 (A.C.M.R. 1985) (holding preference for those in leadership positions is permissible where CA articulates Article 25 criteria; 6 commanders and 3 XOs who were 1 COL, 3 LTCs, 2 MAJs, 2 CPTs, 1 LT); see also United States v. Lynch, 35 M.J. 579 (C.G.C.M.R. 1993), rev’d on other grounds, 39 M.J. 223 (C.M.A. 1994) (holding selection process that limited members to those “with significant seagoing experience” met the requirements of Article 25, specifically the “experience” criterion given the charged offenses).

d.By Random.  United States v. Dowty, 60 M.J. 163 (C.A.A.F. 2004).  Accused  contended that, by soliciting volunteers to serve as court members and then drafting a list of nominees for the CA’s approval, the ASJA violated the letter and spirit of Article 25, UCMJ.  Court upheld conviction in face of “potentially troubling” panel selection where CA personally selected members despite unorthodox nomination process.  While it was error to nominate members based on an irrelevant variable, such as volunteering, the error did not prejudice the accused.  Note:  accused and counsel were “given full opportunity to question potential members in open court to develop any possible biases or preconceptions, and, through appropriate causal and peremptory challenges, removed any potential member who they had reason to believe would not be capable, fair, and impartial.”  Also, by time of accused’s trial, only three “volunteers” remained on seven-member panel.

e.By seniority.  United States v. Melson, No. 36523, 2007 CCA LEXIS 372 (A.F. Ct. Crim. App. Sep. 14, 2007) (unpublished).  At his trial, the accused moved to dismiss the charges and specifications, alleging that the GCMCA improperly selected the panel by intentionally selecting senior members to serve.  Five of the ten members were colonels (O-6s) and, although the case was tried at a different base, some of his staff were chosen as members.  The GCMCA testified that he “wanted to pick members whom he knew had the best judgment and experience.”  He also said it “was the most serious case he had ever handled.”  Furthermore, he wanted to ensure that he had officers with the “requisite maturity and experience.” The issue was addressed at length at trial and the military judge denied the motion, finding that the CA had properly applied Article 25.  The AFCCA affirmed, stating that every panel is essentially “hand-picked.”  However, “[w]hat is impermissible is for the convening authority to select members with a view toward influencing the outcome of the case.”  The court found that the CA gave the panel selection in the case “a great deal of time and consideration . . . [and] did so in an attempt to ensure justice, not subvert it.”  Therefore, the accused did not satisfy his burden to show that the members were improperly selected.

4.Systematic exclusion of otherwise qualified personnel. 

a.Motive.  Generally, where the accused challenges the panel because the CA has allegedly excluded otherwise qualified people (e.g., she prefers to select only those who have command experience), we look to the motivation of the convening authority.  If the motivation is compatible with Article 25, UCMJ, the selection may not be disturbed.  Where the convening authority appoints members to achieve a particular result (e.g., to guarantee a conviction, or a harsh sentence), the CA has engaged in “court stacking” or “court packing.”  This is not a jurisdictional challenge per se but rather a species of command influence, in violation of Article 37.  If the accused alleges the CA has engaged in court stacking, the court will look to the motivation and intent of the CA.

b.United States v. Simpson, 55 M.J. 674 (A. Ct. Crim. App. 2001). aff’d, 58 M.J. 368 (C.A.A.F. 2003).  CA’s deliberate exclusion of personnel assigned to the Army’s Ordinance Center and School did not constitute unlawful “court packing” where the CA’s motive was to find an unbiased and objective panel.

c.United States v. Brocks, 55 M.J. 614 (A.F. Ct. Crim. App. 2001).  Base legal office intentionally excluded all officers from the Medical Group from the nominee list, because all four alleged conspirators and many of the witnesses were assigned to that unit.  Citing United States v. Upshaw, 49 M.J. 111, 113 (C.A.A.F. 1998), “[a]n element of unlawful court stacking is improper motive.  Thus, where the convening authority’s motive is benign, systematic inclusion or exclusion may not be improper.”  Held:  Exclusion of Medical Group officers did not constitute unlawful command influence.  But see United States v. Bartlett, 66 M.J. 426 (C.A.A.F. 2008) (invalidating Army regulation that exempted certain special branches from court-martial duty, including medical personnel). 

d.In United States v. Redman, 33 M.J. 679 (A.C.M.R. 1991), the court found that the Government’s dissatisfaction with the panel’s unusual sentences actually meant dissatisfaction with findings of not guilty or lenient sentences.  The court held the intentional manipulation of Article 25 criteria to achieve particular result in cases is a clear violation of Articles 25 and 37, UCMJ.

e.United States v. Smith, 27 M.J. 242 (CMA 1988) (legal office policy of placing “hardcore” female members on panel in sex cases to achieve a particular outcome was ruled inappropriate); see also United States v. Hilow, 32 M.J. 439 (C.M.A. 1991) (court packing occurred where functionary prepared lists of panel members based upon notions of hard discipline).    

f.Special case of law enforcement personnel.  United States v. Swagger, 16 M.J. 759 (A.C.M.R. 1983) announced that “individuals assigned to military police duties should not be appointed as members of courts-martial.  Those who are the principal law enforcement officers at an installation must not be.”  Bartlett invalidated an Army regulation prohibiting certain occupational specialties from serving as court-martial members, holding that Article 25 was the sole criteria for panel member selection.  However, Bartlett did not explicitly overrule Swagger, and cases since United States v. Bartlett have not revisited this issue.

(1)United States v. Dale, 42 M.J. 384 (C.A.A.F. 1995).  Accused charged with sexual offenses against a child.  Member of panel (Air Force 0-3) was Deputy Chief of Security Police and had sat in on criminal activity briefings with base commander.  Focus is on the perception and appearance of fairness.  Member was intimately involved day-to-day law enforcement on the base; “the embodiment of law enforcement and crime prevention.”  MJ’s denial of challenge for cause reversed and case set aside.

(2)United States v. Fulton, 44 M.J. 100 (C.A.A.F. 1996).  Military judge did not abuse discretion by denying challenge for cause against member who was Chief of Security Police with Bachelor of Arts in criminal justice, where member only had contact with accused’s commander on serious matters requiring high level decisions, and member had no prior knowledge of accused’s misconduct.  Cf. Dale, above.

(3)United States v. Berry, 34 M.J. 83 (C.M.A. 1992).  Member was command duty investigator for NAS Alameda security and knew and worked with key Government witness.  Military judge said, “I don’t think he said anything that even remotely hints that he could not render a fair judgment in this case.”  Abuse of discretion in the face of mere naked disclaimers by member.  Reversed.  But see United States v. McDavid, 37 M.J. 861 (A.F.C.M.R. 1993) (no “per se” rule of exclusion for security policemen).

5.Inclusion or Exclusion by Rank.  Rank is not a criterion listed under Article 25, UCMJ.  The CA may not select members junior to an accused, but, aside from that one qualification, the convening authority may not use rank as a device for deliberate and systematic exclusion or inclusion of otherwise qualified court members.  United States v. Daigle, 1 M.J. 139 (C.M.A. 1975) (policy of excluding all lieutenants and WOs); but see United States v. Yager, 7 M.J. 171 (C.M.A. 1979) (exclusion of persons in grades E-2 and E-1 permissible).

a.Disproportionately senior panel.  Despite the cases holding that the composition of the panel can create an “appearance of evil,” more recent cases have disallowed challenges to the panel based solely on its composition at trial.  United States v. Bertie, 50 M.J. 489 (C.A.A.F. 1999) (disproportionate number of high-ranking panel members did not create presumption of impropriety in selection).

b.Administrative selection error.  United States v. Upshaw, 49 M.J. 111 (C.A.A.F. 1998) (good faith administrative error resulting in exclusion of otherwise eligible members (E6s) was not error).  But see Kirkland, below.

c.Nominee solicitation. 

(1)United States v. Roland, 50 M.J. 66 (C.A.A.F. 1999) (SJA’s memo soliciting nominees E-5 to O-6 was not error).  But see Kirkland, below.

(2)United States v. Ruiz, 46 M.J. 503 (A.F. Ct. Crim. App. 1997), aff’d, 49 M.J. 340 (C.A.A.F. 1998).  Convening authority did not improperly select members based on rank when, after rejecting certain senior nominees from consideration for valid reasons, he requested replacement nominees of similar ranks to keep the overall balance of nominee ranks relatively the same.

d.Excluding junior NCOs and enlisted members. 

(1)United States v. Kirkland,  53 M.J. 22 (C.A.A.F. 2000), pet. for clarification denied, 54 M.J. 211 (C.A.A.F. 2000).  Despite evidence that CA understood and applied Article 25, sentence set aside where panel selection documents appeared to exclude NCOs below E-7.  Panel selection documents may give rise to an appearance of impropriety where documents make it seem that rank was a criterion in panel selection.

(2)United States v. Smith, 37 M.J. 773 (A.C.M.R. 1993).  In handwritten note, convening authority directed major subordinate commanders to provide “E7” and “E8” members for membership on court-martial panel.  ACMR found that selection was based solely on rank in violation of Article 25, UCMJ, and that the improper selection deprived the court of jurisdiction.  Findings and sentence set aside.

(3)United States v. Nixon, 33 M.J. 433 (C.M.A. 1991).  A panel consisting of only E-8s and E-9s creates an appearance of evil and is probably contrary to Congressional intent.  The CG’s testimony, however, established that he had complied with Article 25 and did not use rank as a selection criterion.  Court noted close correlation between the selection criteria for court-martial members in Article 25(d)(2), UCMJ and the grade of a commissioned or non-commissioned officer.  “Indeed, because of that correlation, there is a danger that, in selecting court members, a convening authority may adopt the shortcut of simply choosing by grade.”  Resulting blanket exclusion of qualified officers or enlisted members in lower grades violates Congressional intent.

(4)United States v. Benson, 48 M.J. 734 (A.F. Ct. Crim. App. 1998).  An Air Force convening authority violated Article 25 when, after sending a memorandum to subordinate commands directing them to nominate “officers in all grades and NCOs in the grade of master sergeant or above for service as court-members,” he failed to select members below the rank of master sergeant (E-7).  The convening authority, while testifying that he had no intent to violate Article 25, also testified that he had never selected a member below the rank of E-7.  The court held the CA violated Article 25 by systematically excluding ranks E-4 to E-6.  The findings and sentence were set aside.  This case provides an excellent review of the case law interpreting Article 25, UCMJ, and court member selection.

e.Excluding LieutenantsUnited States v. Fenwrick, 59 M.J. 737 (A.F. Ct. Crim. App. 2003).  Defense raised motion to dismiss for systematic and improper exclusion of lieutenants from panel membership.  The GCMCA testified on the motion regarding his selection of members IAW Article 25 criteria.  The military judge, however, determined the GCMCA had systematically and improperly excluded lieutenants because in the thirteen courts-martial of the fiscal year only two lieutenants were selected and none served.  The military judge granted defense’s motion and ordered the GCMCA to select new panel members free from systematic exclusion of lieutenants.  The GCMCA selected a new panel, without lieutenants, causing the military judge to dismiss the case with prejudice and the Government appealed.  On appeal, AFCCA held “the military judge may rely upon statistical evidence to discern a ‘subconscious’ desire by the convening authority to improperly exclude certain grades, [but] such statistical evidence must clearly indicate such an exclusion.”  Such clear evidence was lacking in this case where lieutenants were not excluded from the nomination process, the GCMCA testified he applied the Article 25 criteria, and the GCMCA had previously selected six lieutenants in fifteen courts-martial in the prior fiscal year.  The court recognized “it is not improper, during the selection process, for a convening authority to look first to officers and enlisted members senior in rank because they are more likely to be the best qualified under Article 25.”

IV.PANEL CHARACTERISTICS

A.Required Numbers. 

1.2016 MJA.  12 members for a capital case, 8 members for a GCM, 4 members for a SPCM.  Applies to all cases referred after 1 January 2019.

2.Legacy system.  No fewer than three members for SPCM, an no fewer than five members for GCM.  Ballew v. Georgia, 435 U.S. 223 (1978).  The legacy system called these numbers a “quorum.”

3.Constitutionality.  A “jury” of less than 6 is unconstitutional in the civilian context, but has been held constitutional in military courts.  United States v. Wolff, 5 M.J. 923 (N.C.M.R. 1978), pet. denied, 6 M.J. 305 (C.M.A. 1979) (holding Sixth Amendment right to trial by “jury” does not apply to courts-martial); United States v. Hutchinson, 17 M.J. 156 (C.M.A. 1984).

4.Capital cases.  Article 25a, UCMJ requires a minimum of twelve panel members in military capital cases, except in certain circumstances.  The change was effective for offenses committed after 31 December 2002.

B.Forum Election

1.Options

a.Officer panel.  Both officers and enlisted defendants may be tried by officer members; however, enlisted members are ineligible to serve as a member in the trial of an officer.

b.Enlisted panel.  Enlisted members may elect to be tried by officer members, or by a panel with at least 1/3 enlisted members.  In the event the accused fails to elect forum, the court-martial will be composed of the members the convening authority detailed to the court.  Under the legacy system, the default was an officer system.  Under the new system, the default court-martial may consist of both enlisted and officer members.

2.Request for trial by judge alone must be voluntary. 

a.Legacy system: Article 25 contained a default to an officer panel in the event the accused did not elect another composition.  This default right could be waived by the accused in a request for trial by judge alone.  In United States v. Follord, No. 20020350 (A. Ct. Crim. App. Feb. 15, 2005) (unpub), the accused, a CW2, did not make a knowing and voluntary waiver of his statutory right to trial by five officer members because of the following errors:  (1) his executed PTA erroneously listed one of his three forum options as a trial by one-third enlisted, (2) his request for military judge alone stated that any trial composed of officers would be “not of his unit,” and (3) military judge advised the accused that if he requested officer members at his general court-martial that the panel must comprise “at least three members.”  The court stated the host of errors “constitutes a lack of substantial compliance with Article 16, UCMJ.”  Findings and sentence set aside. NOTE: In the present system Article 25, there is no default to an officer panel when the accused is enlisted.  

C.Panel with Enlisted Representation

1.General.  The military judge shall ascertain whether the accused elects to be tried by a court-martial composed of at least one-third enlisted members or all officer members.  R.C.M. 903(a)(1)(A). .

2.How requested.  The accused’s election or request, if any, shall be made in writing and signed by the accused or shall be made orally on the record.  R.C.M. 903(b).  Failure to make the request in writing or on the record is procedural, not jurisdictional and will be tested for prejudice.   United States v. Alexander, 61 M.J. 266 (C.A.A.F. 2005).   (“[The] right being addressed and protected in Article 25 is the right of an accused servicemember to select the forum[,] . . . [t]he underlying right is one of forum selection, not the ministerial nature of its recording.”) See also United States v. Morgan, 57 M.J. 119 (C.A.A.F. 2002) (military judge erred by not obtaining on record defendant’s personal request for enlisted members to serve on court-martial, but error was not jurisdictional, and under circumstances, it did not materially prejudice substantial rights of defendant); United States v. Townes, 52 M.J. 275 (C.A.A.F. 2000) (military judge had duty to obtain personal election from accused regarding the forum’s composition, but where no coercion was alleged, the error did not materially prejudice the accused’s substantial rights); United States v. Andreozzi, 60 M.J. 727 (A. Ct. Crim. App. 2004) (two DuBay hearings ordered to determine if the accused personally selected trial by one-third enlisted members, found substantial compliance with procedural rules where relevant circumstances included:  the military judge telling the accused his forum rights, the defense counsel submitting trial by enlisted members paperwork to the military judge, the defense counsel’s testimony that his SOP was to discuss and explain forum rights to the accused and to follow the accused’s wishes, the accused’s presence in the courtroom when the panel was assembled and voir dired, and the accused’s active participation in his own defense.);

3.Rejecting request for enlisted membersUnited States v. Summerset, 37 M.J. 695 (A.C.M.R. 1993).  Military judge abused his discretion when he denied as untimely accused’s request for enlisted members made four days prior to trial.  He made no findings of fact regarding unnecessary expense, unacceptable delay, or significant inconvenience.  See R.C.M. 903(a)(1) and (e).

4.Member Requirements

a.At least one-third enlisted.  Failure to assemble court of at least one-third enlisted members is jurisdictional error necessitating setting aside panel-adjudged sentence.  United States v. Craven, 2004 CCA LEXIS 19 (A.F. Ct. Crim. App. Jan 21, 2004) (unpub.) (following challenges for cause and peremptory strikes, enlisted members constituted only 28.6 percent (five officer and two enlisted) of membership of court).

b.Same unit no longer required.  The 2016 MJA removed the requirement that an enlisted member not be from the same company-sized unit as the accused.  Under the legacy system, Article 25(c)(1), UCMJ, required that enlisted members should not be from the same company-sized “unit” as the accused; however, it was not a jurisdictional defect.  United States v. Milam, 33 M.J. 1020 (A.C.M.R. 1991) (findings and sentence set aside where two enlisted members of the panel were assigned to the same company-sized unit as accused where defense challenged for cause); United States v. Wilson, 21 M.J. 193 (C.M.A. 1986).  However, failure to object waives the issue.  United States v. Zengel, 32 M.J. 642 (C.G.C.M.R. 1991), review denied, 33 M.J. 185 (C.M.A. 1991).

c.SeniorityWhen it can be avoided, court members should not be junior in rank to the accused.  Failure to object results in waiver.  United States v. McGee, 15 M.J. 1004 (N.M.C.M.R. 1983); United States v. Schneider, 38 M.J. 387 (C.M.A. 1993) (Waiver where defense discovered court member was junior to accused during deliberations on findings and remained silent until the morning after findings were read in open court).  See also RCM 503(a) discussion.

V.PANEL MEMBER EXCUSAL

A.Excusal.

1.Delegation of excusal authority.  Prior to assembly, R.C.M. 505(c)(1) allows delegation to staff judge advocate or convening authority’s deputy authority to excuse up to one-third (⅓) of the members.  See AR 27-10, para. 5-18c (11 May 2016). United States v. Cook, 48 M.J. 434 (C.A.A.F. 1998).  The excusal of more than one-third of the members of a panel by the convening authority’s delegate rises to the level of reversible and jurisdictional error only if the defense objects to the excusals and substitutions of members at trial, and the record somehow indicates that the accused was deprived of a right to make causal or peremptory challenges.  In Cook, the accused was convicted of violating a lawful general regulation and possession of marijuana with intent to distribute.  Prior to trial, the SJA excused five of nine members who were detailed to sit as members.  The accused suffered no prejudice because he failed to object to the excusals at trial. 

2.Excusal after assembly.  Excusal after assembly can occur only as the result of a challenge or by the military judge for good cause shown on the record.  United States v. Latimer, 30 M.J. 554 (A.C.M.R. 1990) (panel member’s upcoming appointment for physical examination was not “good cause”). It can also occur by the convening authority for good cause shown on the record.  R.C.M. 505(c)(2)(A).    

3.A sleeping member is good cause for excusal.  United States v. Boswell, 36 M.J. 807 (A.C.M.R. 1993).  Military judge could have rehabilitated member by reading portions of transcript.  Not an abuse of discretion, however, to excuse.  What if excusal dropped court below quorum?  Mistrial?  See R.C.M. 806(d)(1).

VI.Replacement Members

A.Sloppy paper trailsUnited States v. Gebhart, 34 M.J. 189 (C.M.A. 1992).  “The administration of this court-martial...can best be described as slipshod.”  “Such a lack of attention to correct court-martial procedure cannot be condoned.”  The amended CMCO mistakenly removed member who actually sat on panel.  The order also included a member who was not present without explanation for the absence.  The amending order also incorrectly referred to the original order by the wrong number.  Held:  errors were administrative and not jurisdictional.  Issue was waived by defense failure to object.  See also United States v. Sargent, 47 M.J. 367 (C.A.A.F. 1997) and United States v. Larson, 33 M.J. 715 (A.C.M.R. 1991).

B.Triggering mechanisms.  United States v. Mack, 58 M.J. 413 (C.A.A.F. 2003).  SJA memorandum approved by convening authority concerning operation of convening order provided that, when accused requested panel of at least one-third enlisted members, alternate enlisted members would be automatically detailed without further action by the convening authority if, among other triggering mechanisms, “before trial, the number of enlisted members  . . . falls below one-third plus two.”  Prior to trial, two officers and one enlisted member were excused, leaving five officer and four enlisted members (a total of nine members, of which one-third plus two, or five, were enlisted).  At trial, two additional enlisted members sat, which appeared to be inconsistent with the above triggering mechanism.  The defense did not object.  ACCA remanded on its own for a DuBay hearing concerning the presence of the additional two enlisted members.  CAAF held that, “When a convening authority refers a case for trial before a panel identified in a specific convening order, and the convening order identifies particular members to be added to the panel upon a triggering event, the process of excusing primary members and adding the substitute members involves an administrative, not a jurisdictional matter.  Absent objection, any alleged defects in the administrative process are tested for plain error.”  Here there was no error.  Excusal of one officer and the one enlisted member prior to the excusal of the other officer would have reduced the panel to ten members, five of who were officers and five of whom were enlisted.  This triggered the one-third plus two triggering event.  Even if there was error in the triggering event, so long as the members were listed on the convening order and the panel met the one-third requirement, any error in the operation of the triggering mechanism was administrative, not jurisdictional.

C.Court-Martial Convening Orders and harmless errorUnited States v. Adams, 66 M.J. 255 (C.A.A.F. 2008) (even though amending CMCO included plain language that a new court-martial was “hereby convened,” court found mistake was a mere harmless administrative error).

VII.panel Members role at trial

A.Call witnesses and receive evidence.  Article 46, UCMJ; RCM 921(b); R.C.M. 801(c) and discussion.  See also United States v. Story, No. 20061014 (A. Ct. Crim. App. Dec. 2, 2009) (unpublished).  During the accused’s trial, the members were on a two-hour break after both sides had rested but before closing arguments and instructions.  When the panel returned, a member asked to call an additional witness.  The military judge responded, “The answer to that is, you’ve heard all the evidence in this case.”  The ACCA held the military judge erred.

1.R.C.M. 801(c) similarly provides:  “The court-martial may act to obtain evidence in addition to that presented by the parties.  The right of the members to have additional evidence obtained is subject to an interlocutory ruling by the military judge.”  The Discussion to RCM 801(c) notes the members may request a witness be recalled or that a “new witness be summoned.”

2.MRE 614(a) also notes the military judge may call (or recall) witnesses “at the request of the members.” 

B.Reopen proceedings.  R.C.M. 921(b) expressly allows the members to “request that the court-martial be reopened and that portions of the record be read to them or additional evidence introduced” though the rule grants the military judge latitude “in the exercise of discretion” to grant or deny such request.

C.Standard to deny request.

1.Lampani factors.  In United States v. Lampani, 14 M.J. 22, 26 (C.M.A. 1982), the COMA provided a non-exclusive list of factors a military judge must consider before denying a member’s request for additional evidence:  “Difficulty in obtaining witnesses and concomitant delay; the materiality of the testimony that a witness could produce; the likelihood that the testimony sought might be subject to a claim of privilege; and the objections of the parties to reopening the evidence are among the factors trial judge must consider.”  In this case, the military judge did not consider these factors (or any other factors) on the record, which was an abuse of discretion.

2.See also United States v. Lents, 32 M.J. 636 (A.C.M.R. 1991).  Court member questions were essentially a request to call witnesses.  Court members may request witnesses be called or recalled.  The military judge must weigh difficulty, delay, and materiality; consider whether a privilege exists; and whether the parties object; United States v. Lampani, 14 M.J. 22 (C.M.A. 1982) (even after deliberations have begun members may request additional evidence).

D.Alternate members

1.Alternate members are members of the court-martial and have all the same duties as members, except that they do not deliberate.  R.C.M. 502.  Alternate members become members only if a member is excused.

VIII.Impanelment

A.General

1.Article 29 provides a new process for impaneling a court-martial.  Under the 2016 MJA, the additional step of impanelment is necessary to ensure that the membership of the court conforms to the elections of the accused and the numerical requirements of Article 16. 

2.RCM 912A and 912B provide a random numbering scheme by which the court-martial is to determine the members and the alternates (if any).  Any members not needed are then excused.

IX.Military Judges

A.General.

1.Requirement for a military judge of a general or special court-martial.  

a.Legacy system.  Article 26 requires that a military judge be detailed to each general court-martial.  Article 19 imposes additional sentencing limitations at a special court-martial where no military judge has been detailed.  Service regulations may have additional requirements.  See, e.g., AR 27-10, Paragraph 5-28(a) (11 May 2016) (requiring detail of a military judge to all special courts-martial). 

b.2016 MJA.  The requirement for a military judge is baked in to the definition of what a court-martial is.  No general or special court-martial may proceed without a military judge.

2.What constitutes “presence” at trial.  United States v. Reynolds, 44 M.J. 726 (A. Ct. Crim. App. 1996), aff’d, 49 M.J. 260 (C.A.A.F. 1998). The physical absence of the military judge at a pretrial proceeding does not deprive an accused of the structural due process protections created by Articles 26 and 39, UCMJ, and R.C.M. 803, 804, and 805.  The military judge held arraignment proceedings by speakerphone.  The military judge was at Fort Stewart while the accused, DC and TC were in a courtroom at Fort Jackson.  Military judge advised the accused of all rights and the accused consented to the speakerphone procedure.  The military judge was not “present” but the accused’s due process rights were not violated.  The speakerphone procedure lasted for just twelve minutes of a seven hour trial and the judge was physically present for the remainder of the trial.  Note, R.C.M. 804(b) has since been amended to allow for “the use of audiovisual technology” for Article 39(a) sessions, subject to authorization by the applicable Service Secretary. 

3.Accused’s forum selection.  Trial before military judge alone.

a.RequestR.C.M. 903(b).  TTrial by judge alone may be elected or requested orally or in writing by the accused. If the request is made in writing, it must be signed by the accused.  See also United States v. Wright, 5 M.J. 106 (C.M.A. 1978).  Accused may withdraw request for good cause.  A request for trial by military judge alone may be withdrawn by the accused as a matter of right any time before it is approved, or even after approval, if there is a change of the military judge.  R.C.M. 903(d)(2).  Failure to withdraw a request for a trial by military judge alone in a timely manner shall waive the right to withdraw such a request.  However, the military judge may, until the beginning of the introduction of evidence on the merits, as a matter of discretion, approve an untimely withdrawal of a request.  RCM 903(e). 

(1)Doctrine of Substantial Compliance. United States v. Mayfield, 45 M.J. 176 (C.A.A.F. 1996).  The absence of a written or oral request for trial by military judge alone did not establish a substantial matter leading to jurisdictional error based on the dialogue at trial, the absence of a defense objection, and accused’s post-trial Article 39(a) confirmations of his desire to be tried by judge alone.  A post-trial session is permissible to cure jurisdictional errors created by the failure to obtain an accused’s request for trial by military judge alone.  Conviction affirmed.

(2)United States v. Turner, 47 M.J. 348 (C.A.A.F. 1997).  A written request for trial by military judge alone, which counsel made and submitted before trial, and then confirmed orally at an Article 39a session with the accused, present substantially complies with Article 16, UCMJ.  While the military judge erred in failing to obtain an oral statement of selection of the forum from the accused, the error did not materially prejudice the accused.

(3)United States v. Seward, 49 M.J. 369 (C.A.A.F. 1998).  An accused’s forum request from a previous court-martial that was terminated by mistrial cannot be used to support a forum request at a subsequent court-martial.  However, accused suffered no prejudice under Article 59 because his request for trial by military judge  alone was apparent from the pretrial agreement (forum selection was a term), and there was a written request for the same even though offered after completion of the sentencing proceedings. 

(4)United States v. Alexander, 61 M.J. 266 (C.A.A.F. 2005).   Military judge advised the accused of his forum selection rights, which accused requested to defer.  During a later proceeding, military judge stated that he was told an enlisted panel would be hearing the case and defense did not object.  The accused, however, failed to state in writing or on the record his request for enlisted members in violation of Article 25, UCMJ and R.C.M. 903(b)(1).  The CAAF held that the error in the accused failing to personally select forum on the record is a procedural, as opposed to jurisdictional, issue.  The court stated “[the] right being addressed and protected in Article 25 is the right of an accused servicemember to select the forum[,] . . . [t]he underlying right is one of forum selection, not the ministerial nature of its recording.”  The CAAF held that the record reflected that the accused selected court-martial by panel members and the accused failed to show that the error in recording his forum selection resulted in any prejudice.

(5)United States v. Goodwin, 60 M.J. 849 (N-M. Ct. Crim. App. 2005).  Accused failed to state in writing or orally on the record his request for a judge alone trial as required by Article 16, UCMJ.  Military judge failed to advise the accused of his forum rights and the only evidence of his intent existed was a single sentence in the pretrial agreement, to request trial by judge alone (a term the military judge failed to discuss with the accused).  N-MCCA held the failure to advise the accused of his forum rights did not substantially comply with Article 16, UCMJ, and found the error was not harmless.  Findings and sentence set aside.

(6) United States v. Follord, No. 20020350 (A. Ct. Crim. App. Feb. 15, 2005) (unpub).  The accused, a CW2, did not make a knowing and voluntary waiver of his statutory right to trial by five officer members because of the following errors:  (1) his executed PTA erroneously listed one of his three forum options as a trial by one-third enlisted, (2) his request for military judge alone stated that any trial composed of officers would be “not of his unit,” and (3) military judge advised the accused that if he requested officer members at his general court-martial that the panel must comprise “at least three members.”  The court stated the host of errors “constitutes a lack of substantial compliance with Article 16, UCMJ.”  Findings and sentence set aside.

b.Requests submitted after assembly of the court-martial allowed if justified by the circumstances.  United States v. Jungbluth, 48 M.J. 953 (N-M. Ct. Crim. App. 1998).  Accused pled guilty to wrongful use of marijuana on divers occasions before a properly assemble court consisting of a panel of officer members. A military judge was forced to declare a recess after the TC became ill.  At the next session of court the parties presented the military judge with a PTA.  Under the PTA, the military judge dismissed the officer panel, conducted a providence inquiry, entered findings, and adjudged a sentence.  A military judge can lawfully approve a request for trial by military judge alone after assembly if justified by the circumstances.  R.C.M. 903 does not expressly prohibit approval of after assembly forum requests, and in this case, military judge approved the request under the terms of a pretrial agreement.  The agreement was mutually beneficial to both sides and the accused suffered no prejudice.  But see RCM 705 (plea agreements) and R.C.M. 910 (f)(6) (pleas).  Upon acceptance by the military judge, a plea agreement shall bind the parties and the court-martial.  

4.A Right?

a.United States v. Ward, 3 M.J. 365 (C.M.A. 1977).  There is no right to a judge alone trial.  But see United States v. Butler, 14 M.J. 72 (C.M.A. 1982) (military judge must state reason for denial of judge alone request).

b.United States v. Webster, 24 M.J. 96 (C.M.A. 1987).  Denial of a timely motion for trial by judge alone cannot be based on judge’s desire to discipline counsel nor to provide court members with experience.

c.United States v. Edwards, 27 M.J. 504 (C.M.A. 1988).  Once military judge ruled he was not disqualified from hearing case, he abused his discretion by denying accused right to trial by judge alone, as requested.

d.United States v. Dodge, 59 M.J. 821 (A.F. Ct. Crim. App. 2004), rev’d on other grounds, 60 M.J. 368 (C.A.A.F. 2004) (holding RCM 903(c)(2)(B) does not create a “concomitant absolute right” to be tried by military judge alone). 

B.Qualifications.

1.Article 26, UCMJ.  Military judge shall be a commissioned officer who is a member of the bar of a Federal court or the highest court of a State and who is certified to be qualified by reason of education, training, experience, and judicial temperament, for duty as a military judge by TJAG. 

2.Member of a bar.  Military judge’s “inactive status” with her state bar nevertheless equated to her being a “member of the Bar” of Pennsylvania as contemplated by Article 26(b).  United States v. Cloud, ARMY 9800299 (A. Ct. Crim. App., Dec. 14, 2000) (unpub), aff’d, 55 M.J. 164 (C.A.A.F. 2001) (summary disposition); United States v. Brown, ARMY 9801503 (A. Ct. Crim. App. Dec. 11, 2000) (unpub), aff’d, 55 M.J. 366 (C.A.A.F. 2001) (summary disposition) (ACCA also considered fact that judge, although “inactive” in state bar, was a member in good standing of “this [the ACCA] Federal bar”).  See also United States v. Corona, 55 M.J. 247 (C.A.A.F. 2001) (summary disposition).

3.Reserve Judges.  Change to MCM.

a.Change to R.C.M. 502; Executive Order removed holdover provision concerning qualifications for military judges.

b.MCM had mandated that military judges be commissioned officers on active duty in the armed forces.  The current R.C.M. 502(c) deletes that requirement, enabling reserve military judges to try cases while on active duty, inactive duty training, or inactive duty training and travel.

c.Issue:  Does this mean reservists can try GCM and SPCMs?  Generally, no.  Only military judges assigned directly to TJAG and TJAG’s delegate (Trial Judiciary) may preside at GCMs.  AR 27-10, paras. 8-1(c)(2), 8-2(a) (11 May 2016). 

4.Detailing.  Military judges are normally detailed according to the regulations of the “Secretary concerned.”    

a.Army.  AR 27-10, para. 5-3 (11 May 2016) governs.  Detailing is a ministerial function to be exercised by the Chief Trial Judge, U.S. Army Judiciary, or his or her delegate.  The order detailing military judge must be in writing, included in the record of trial or announced orally on the record.

b.Detailing in a joint environment.  In a joint environment, there is no “Secretary concerned.”  Therefore, detailing should be agreed upon by convening authority, SJA, and defense.  See Captains William H. Walsh and Thomas A. Dukes, Jr.,  The Joint Commander as Convening Authority:  Analysis of a Test Case, 46 A.F. L. Rev. 195 (1999). 

5.Replacement of military judges – RCM 505(e)(2).  United States v. Kosek, 46 M.J. 349 (C.A.A.F. 1997).  The Air Force did not violate a CAAF remand order by substituting a new military judge at accused’s court-martial after the CAAF ordered that the record be returned to the “military judge” for reconsideration.

6.Appellate Judges. 

a.United States v. Walker, 60 M.J. 354 (C.A.A.F. 2004).  In a capital case, the CAAF granted the accused’s motion for extraordinary relief regarding the composition of judges on his N-MCCA panel.  In 1995, the accused’s case was assigned to the N-MCCA panel 3.  Over the years the composition of panel 3 changed resulting in the presence of only one judge in the spring of 2004.  Most N-MCCA judges, to include the Chief Judge, were disqualified in the case.  Based on the Chief Judge’s disqualification the TJAG under Article 66, UCMJ selected a new Chief Judge to handle the accused’s case.  Immediately prior to the TJAG’s appointment, the original Chief Judge established a new court policy establishing “an order of precedence among judges on the court for the purpose of exercising the responsibility to make panel assignments in a particular case in the event of the absence or recusal of the chief judge.”  The problem at issue occurred when the substitute Chief Judge appointed by the TJAG retired requiring the appointment of another substitute Chief Judge to proceed over the accused’s case.   At that time the N-MCCA attempted to use the new policy letter to select a substitute Chief Judge with objection from the accused.  The CAAF held because the N-MCCA did not use the policy to select the first substitute Chief Judge it was not appropriate to use the policy to select the second substitute Chief Judge and a substitute appointment by the TJAG was necessary.

b.United States v. Lane, 64 M.J. 1 (C.A.A.F. 2006).  A Member of Congress may not serve as an appellate judge for a service court because of the Ineligibility and Incompatibility Clauses of the United States Constitution.  The CAAF reasoned that no Person holding any office under the United States [i.e., a service court judicial position] should simultaneously serve as a Member of either House during his Continuance in Office.  In the case, Senator Lindsey Graham, a reserve military judge on the AFCCA, was challenged.    

7.  Tenure/Fixed Term and Appointment. 

a.Settled issue regarding appointment of civilians to Coast Guard Court of Criminal Appeals.  Edmond v. United States, 520 U.S. 651 (1997), aff’g United States v. Ryder, 44 M.J. 9 (C.A.A.F. 1996) (holding that civilian judges on Coast Guard Court of Criminal Appeals are inferior officers and do not require additional presidential appointment; therefore, the Congressional delegation of appointment authority to Secretary of Transportation to appoint judges is consistent with Appointments Clause.  See also United States v. Graf, 35 M.J. 450 (C.M.A. 1992); United States v. Weiss, 36 M.J. 224 (C.M.A. 1993), aff’d, 510 U.S. 163 (1994). United States v. Grindstaff, 45 M.J. 634 (N-M. Ct. Crim. App. 1997) (judges of courts of criminal appeals, military judges, and convening authorities are not principal officers under Appointments Clause and do not require a second appointment).

b.United States v. Paulk, 66 M.J. 641 (A.F. Ct. Crim. App. 2008).  Accused, an Air Force officer, pled guilty to several offenses and was sentenced to confinement for 30 days and a dismissal.  On appeal, the defense argued that the Equal Protection component of the Fifth Amendment’s Due Process Clause was violated because the military judge and the appellate judges serve without a fixed term of office, while those in the Army and Coast Guard judiciary enjoy such protection by regulation.  “Essentially, the appellant is saying that either all or none of the services should have fixed terms, but the mixed bag currently existing violates constitutional imperatives of equal protection.”  The court rejected the defense argument.

C.Disqualification and Recusal

1.General.  Under R.C.M. 902(a), “a military judge shall disqualify himself or herself in a proceeding in which that military judge’s impartiality might reasonably be questioned.”  R.C.M. 902(e) allows parties to waive any ground for challenge predicated on this subsection.

2.Legal standard for recusal.  The Discussion to R.C.M. 902(d)(1) directs a military judge to “broadly construe grounds for challenge” but not to “step down from a case unnecessarily.”  On appeal, a military judge’s decision regarding recusal will be reviewed for an abuse of discretion. 

3.Non-waivable grounds for recusal.  Under R.C.M. 902(b), five non-waivable (and rare) grounds are listed, directing that a military judge should be disqualified if he or she: (1) has a personal bias or prejudice about a party or personal knowledge of “disputed” facts in the case; (2) has acted as counsel, investigating officer legal officer, SJA, or convening authority for any of the offenses; (3) has been or will be a witness in the case, was the accuser, forwarded charges with recommendations, or expressed opinion about the accused’s guilt; (4) is not qualified under RCM 502(c) or not detailed under R.C.M. 503(b); or (5) is personally or has a family member who is a party to the proceeding, has a financial or other interest in the outcome of the proceeding, or likely to be a “material” witness.

4.Appellate review – Liljeberg factors.  On appeal, courts apply the three factors from Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847 (1988), to determine if reversal is warranted when a military judge should have been recused:  (1) risk of injustice to the parties in the case, (2) risk that the denial of relief will result in injustice in other cases, and (3) the risk of undermining public confidence in the judicial process.

5.Disqualification Mechanics

a.GeneralR.C.M. 902 governs disqualification of a judge.

b.Personal attack on judge may create UCI.  United States v. Lewis, 63 M.J. 405 (C.A.A.F. 2006).  Trial counsel requested military judge’s recusal based mainly on an alleged inappropriate professional and social relationship with the accused’s civilian defense counsel (CDC).  Military judge denied the Government’s recusal motion and defense filed a UCI motion.  During testimony on the UCI motion, the SJA alluded that the military judge lied regarding her relationship with the CDC and characterized “the [MJ] and [CDC] being seen leaving a theater together as a ‘date.’”  Without ruling on the UCI motion, military judge recused herself finding that there was no basis for recusal in fact or appearance but she was unable to remain impartial “following the Government’s attack on her character.”  Another military judge was detailed who sua sponte recused himself because “he was so shocked and appalled by the unprofessional conduct of [the TC] and [the SJA] that he was not convinced he could remain objective.”  This required detailing two additional military judges to conduct various proceedings which eventually lead to a guilty plea by the accused.  On appeal, the N-MCCA held that the actions of the TC and SJA were unprofessional and constituted unlawful command influence but that their actions did not prejudice the accused’s court-martial which was tried by two impartial military judges.  The CAAF, however, ruled “since the appearance of unlawful influence was created by the Government, achieving its goal of removing [the MJ] without sanction, a rehearing before any [judge] other than [the detailed MJ] would simply perpetuate this perception of unfairness.”  Findings and sentence set aside and charges dismissed with prejudice.

6.Disqualification Standard

a.Remote financial interest not enough.  United States v. Reed, 55 M.J. 719 (A. Ct. Crim. App. 2001).  The accused pled guilty to conspiracy to commit larceny and to willfully and wrongfully damaging nonmilitary property in a scheme to defraud USAA automobile insurance company.  During sentencing, a USAA claims handler talked about fraudulent claims and their effect on the company’s policyholder members.  The military judge (himself a policyholder member) immediately disclosed his affiliation with USAA and stated this would not affect his sentencing decision.  The military judge allowed the defense an opportunity to voir dire, and the DC exercised it.  The military judge also offered the defense the opportunity to challenge him for cause, but the defendant declined.  The court, after sua sponte disclosing all judges of the ACCA are also policy holders of USAA, held there was nothing improper or erroneous in the judge’s failure to disclose his policy holder status until a potential ground for his disqualification unfolded.  Further, it found the military judge’s financial interests were so remote and insubstantial as to be nonexistent.  See also RCM 902(b)(5)(B) (non-waivable basis for recusal if military judge has financial interest that could be “substantially affected” by outcome of case).

b.Potential disqualification based on previous victimization.  United States v. Robbins, 48 M.J. 745 (A.F. Ct. Crim. App. 1998).  Military judge who was the victim of spousal abuse 13 years ago before presiding at a trial of an accused charged with battery of his pregnant wife (and intentionally inflicting grievous bodily harm on his wife and involuntary manslaughter by unlawfully causing termination of his wife’s pregnancy) did not abuse her discretion in failing to recuse herself.  The Air Force court directs military judges to apply a totality of the circumstances type test to resolve recusal matters involving military judges who are victims of the type of offense with which an accused is charged.  The court emphasizes that our “national experience” supports a preference for “judges with real-life experiences.”

c.Military judge and accused members of same chain of command. United States v. Norfleet, 53 M.J. 262 (C.A.A.F. 2000).  Presence of military judge’s superiors in SPCMCA chain of command did not require military judge’s recusal under RCM 902.  Accused was an Air Force paralegal, assigned to AF Legal Services Agency.  Commander, AFLSA, served as director of Air Force judiciary and endorser on military judge’s OER.  Commander of AFLSA forwarded case (without recommendation) to Commander, 11th Wing (the SPCMCA), for disposition.  CAAF held that this did not constitute a per se basis for disqualification.  In light of military judge’s superiors taking themselves out of the decision making process, the full disclosure by the military judge, and opportunity provided to defense to voir dire the military judge, the accused received a fair trial by an impartial judge.

d.Knowledge of sentence limitation in a PTA.  United States v. Phillipson, 30 M.J. 1019 (A.F.C.M.R. 1990).  Inadvertent exposure to sentence limitation does not require judge to recuse himself.

e.Previous judicial exposure.

(1)General rule.  United States v. Soriano, 20 M.J. 337 (C.M.A. 1985).  If the military judge is accuser, witness for prosecution, or has acted as investigating officer or counsel, disqualification of military judge is automatic.  But military judge need not recuse himself solely on basis of prior judicial exposure to the accused.  See also United States v. Proctor, 34 M.J. 549 (A.F.C.M.R. 1992).

(2)Prior trial of same accused.  United States v. Howard, 50 M.J. 469 (C.A.A.F. 1999). No prejudicial error occurred where military judge presided at prior case involving accused (who was tried twice, first for assault, then for AWOL).  Military judge noted prior adjudication on the record and accused maintained he wished to proceed with the present judge.  During the sentencing phase in the AWOL case, the defense introduced the accused’s version of the events underlying the prior conviction; military judge interrupted defense counsel and stated that, although he had awarded the accused “an unusually light sentence for a fractured jaw,” he found him guilty during that prior trial because he had kicked the victim in the head while he was on the ground.  CAAF held that there was no error.

(3)Prior judicial rulingsLiteky v. United States, 510 U.S. 540 (1994).  Supreme Court (interpreting 28 U.S.C. § 455(b)(1)) indicates that prior judicial rulings against a moving party almost never constitute a basis for a bias or partiality recusal motion.  Recusal not required except when prior rulings or admonishments evidence deep-seated favoritism or antagonism as would make a fair judgment impossible.  Cited in United States v. Loving, 41 M.J. 213 (C.A.A.F. 1994).

(4)Contact with SJA/DSJA regarding companion cases.  Military judges should not communicate with the SJA office about pending cases.  In United States v. Greatting, 66 M.J. 226 (C.A.A.F. 2008), the military judge presided over three companion cases before hearing the present case.  The accused’s defense counsel questioned the military judge about the other cases and the judge admitted to having ex parte communications with “the staff judge advocate and probably his deputy” about the companion cases.  Specifically, the military judge remembered saying that, for one co-accused, Government “sold the case too low given his culpability.”  For the other two cases, he “questioned the appropriateness of their being at a special court-martial.”  The military judge also commented on the accused’s level of culpability as one of the “two staff NCOs.”  By contrast, the military judge “questioned” (his word) whether the two junior Marines should have been sent to a special court-martial at all.  Based on the military judge’s communications with the SJA and “probably his deputy,” trial defense counsel made a motion for the judge to recuse himself under RCM 902(a) for implied bias.  The military judge denied the request.  In reversing, the court noted the SJA was “the very individual responsible for advising the convening authority,” and the military judge made ex parte comments while clemency matters in the other cases were pending and, likely, before the accused’s pretrial agreement had been finalized. 

f.Ex parte communication

(1) In certain circumstances, ex parte contact with the military judge may be required.  The 2016 MJA provides for a ex parte proceeding to issue certain warrants before referral.  See Art. 30a and RCM 309. Practitioners should consult the relevant RCM, their service regulations, and their technical chain of command to ensure the communication is necessary and appropriately scoped.

(2)Contact with trial counselUnited States v. Butcher, 56 M.J. 87 (C.A.A.F. 2001).  The military judge, who was presiding over a contested trial, went to a party at the trial counsel’s house and played tennis with the trial counsel.  The CAAF reviewed whether the military judge abused his discretion by denying a defense request that the judge recuse himself.  The CAAF advised that under the circumstances the military judge should have recused himself.  However, the Court held there was no need to reverse the case, because there was no need to send a message to the field, the social interaction took place after evidence and instructions on the merits, and public confidence was not in danger (the social contact was not extensive or intimate and came late in trial).

(3)Assisting trial counsel ex parteUnited States v. Cornett, 47 M.J. 128 (C.A.A.F. 1997).  Military judge did not abuse discretion when he denied a defense recusal request based on an ex parte conversation between military judge trial counsel, wherein the judge stated, “Well, why would you need that evidence in aggravation, because I’ve never seen so many drug offenses?  Why don’t you consider holding that evidence in rebuttal and presenting it, if necessary, in rebuttal?”  Military judge invited voir dire concerning any predisposition toward sentence; accused selected trial by judge alone pursuant to voluntary pretrial agreement term; counsel and accused were given a recess to confer about the challenge after the accused made his forum selection; and the military judge made full disclosure on the record and disclaimed any impact on him.  RCM 902(a) requirements regarding recusal and disqualification were fully met.

g.Presiding over a companion case

(1)General.  A military judge is not per se disqualified from presiding over companion cases.  See also United States v. Nave, ACM 36851, 2008 WL 5192217 (A.F. Ct. Crim. App. Dec. 10, 2008) (unpublished) (military judge not required to recuse after presiding over three companion cases, even though two of those co-accused were set to testify in this case and the military judge had ruled in a companion case about an entrapment defense the accused planned on raising).  The CAAF noted that sitting on companion cases, without more, does not mandate recusal. United States v. McIlwain, 66 M.J. 312 (C.A.A.F. 2008 (citing United States  v. Oakley, 33 M.J. 27, 34 (C.M.A. 1991)).  United States v. Rivers, 49 M.J. 434 (C.A.A.F. 1998) (military judge did not abuse his discretion in denying defense motion that he recuse himself based on the fact that he had ruled on a command influence issue similar to the accused’s in a companion case, and that he had learned that accused had offered to plead guilty.  The military judge ruled in the accused’s favor on the UCI issue, and no incriminating evidence or admissions from the accused relating to the offer to plead guilty were disclosed during trial on the merits.  There was no reasonable doubt about the fairness of accused’s trial.); United States v. Burris, 25 M.J. 846 (A.F.C.M.R. 1988) (holding presiding over earlier trial involving same urinalysis inspection did not disqualify trial judge). 

(2)Bias raised when judge conceded her partiality could be questioned.  In United States v. McIlwain, 66 M.J. 312 (C.A.A.F. 2008), before the accused made forum election, the military judge stated on the record that she had presided over two companion cases (one a guilty plea and one a mixed plea).  In the course of those companion cases, the military judge conducted providence inquiries and heard evidence that implicated the accused.  The military judge advised defense counsel:  “[I]f your client desires to go with a judge alone, then I would not sit; I would recuse myself.  If your client decides to go with a panel of either all officers or officers and enlisted members, then I’m comfortable that I will be able to objectively instruct the members, rule on objections, and that sort of thing, because my role is different.”  The accused elected trial by member and challenged the military judge.  In response, the military judge noted she had made decisions favorable to the accused regarding witness credibility in the companion cases, decisions that “would suggest to an impartial person looking in that I can’t be impartial in this case” if serving as the fact finder; however, the military judge reiterated that she would be comfortable presiding over a members case.  The CAAF held the military judge abused her discretion in refusing the recusal request and set aside the findings and sentence.  On the military judge’s concession that an “impartial person” would have questioned her impartiality, the CAAF held the military judge abused her discretion in denying the recusal motion. 

h.Repeated sua sponte (and pro-Government) decisions may create appearance of partiality.  United States v. Johnston, 63 M.J. 666 (A.F. Ct. Crim. App. 2006).  Military judge “abandoned his impartial role in th[e] case solely on the basis of his actions and rulings during the trial.”  The court noted the ruling was unusual because a specific ground for dismissal did not arise under R.C.M. 902 but that after applying an objective test, based on the standpoint of a person watching the proceedings, the judge’s rulings created the appearance of partiality in favor of the Government.  The military judge twice sua sponte reversed a previous judge’s ruling and admitted evidence regarding statements made by the accused’s wife that were strongly pro-Government.  The court stated that although no actual bias by the military judge was noted, the judge abused his discretion by not disqualifying himself under R.C.M. 902.  Findings and sentence reversed.

i.Busted providence inquiry.

(1)General.  The military judge is not required, per se, to recuse himself from further proceedings in a trial unless his impartiality was reasonably in question. United States v. Bray, 49 M.J. 300 (C.A.A.F. 1998) (where judge has conducted a providence inquiry, reviewed a stipulation of fact, and entered findings of guilty to initial pleas but accused thereafter withdrew plea based on possible defense that came out during sentencing, military judge was able to preside over subsequent guilty plea unless he had formed an “intractable opinion as to the accused’s guilt,” and a reasonable person who knew the facts of the case would question the appearance of impurity and have doubts as to the military judge’s impartiality).

(2)Preference for recusal. 

(a)Army.  The Army’s preference is for the military judge to recuse himself after the withdrawal of a guilty plea.  United States v. Rhule, 53 M.J. 647 (A. Ct. Crim. App. 2000)

(b)Air Force.  Judge not disqualified simply based on participation in first providence inquiry.  United States v. Dodge, 59 M.J. 821 (A.F. Ct. Crim. App. 2004), rev’d on other grounds, 60 M.J. 368 (C.A.A.F. 2004).  Accused completed the entire providence inquiry but prior to the announcement of findings the parties disagreed over the maximum punishment.  The accused then requested to withdraw his plea and proceed to trial, which request the military judge granted, and the case was adjourned for sixty days.  During forum selection for the now contested proceeding, the accused claimed his rights to forum were circumscribed by the continued presence of the military judge who heard his providence inquiry and that he had no practical option but to select a trial by members.  Military judge allowed the accused to voir dire her regarding her potential bias and denied his challenge noting “she had not accepted [his] plea, had not formed an opinion concerning his guilt or innocence and everything she knew about the case was learned in her judicial capacity.”  Subsequently, accused pled guilty to the same specifications (except for one) that he attempted to plead guilty to in the first hearing.  AFCCA held the accused’s forum rights were not impinged citing R.C.M. 903(c)(2)(B) and stated “there is no concomitant absolute right” to have a case tried by military judge alone.  Further the court held the military judge is not disqualified “based simply on her participation in the first providence inquiry.”  The court declined to adopt the Army’s approach in this situation stating “We are aware of the [ACCA’s] approach . . . expressing a preference for recusal after withdrawal of guilty pleas” (citing Rhule) but “this Court rejected that approach long ago.”

(3)Revalidation of request for trial by military judge encouraged.  United States v. Winter, 35 M.J. 93 (C.M.A. 1992).  Military judge is not per se disqualified after conducting a providence inquiry and then rejecting accused’s plea of guilty to a lesser included offense.  Counsel and judges should determine whether the judge should ask the accused if accused wants to continue to be tried by judge alone when the judge has rejected the plea. 

j.Knowledge of witnesses. 

(1)Exposure to witnesses.  United States v. Davis, 27 M.J. 543 (C.M.A. 1988) (military judge must use special caution in cases where he has heard a witness’ testimony against a co-actor at a prior trial); United States v. Oakley, 33 M.J. 27 (C.M.A. 1991) (exposure to motions and pleas at prior trial of co-actors did not require recusal of military judge in trial before members).

(2)Relationship to witnessUnited States v. Wright, 52  M.J. 136 (C.A.A.F. 1999).  Military judge announced at trial that he had a prior “close” association with NCIS agent stemming from a duty station at which the military judge, as a prosecutor, worked closely with the agent on several important criminal cases.  Military judge said he felt the NCIS agent was an honest and trustworthy person and a very competent NCIS agent, but that the witness would not have a “leg up” over the credibility of other witnesses, particularly the accused.  The judge said he gave all members of the Marine Corps a certain “credence.”  CAAF noted that military judges have broad experiences and a wide array of backgrounds that are likely to engender ties with other attorneys, law firms, and agencies.  Here, military judge’s full disclosure, sensitivity to public perceptions, and sound analysis objectively supported his decision not to recuse himself; these factors contribute to a perception of fairness.

k.Consultation with other judges not improper.  United States v. Baker, 34 M.J. 559 (A.F.C.M.R. 1992) (holding that a military judge’s consultations with another judge concerning issue in a case is not improper.)

l.Conduct outside of court

(1)Contact with civilian witness.  United States v. Quintanilla, 56 M.J. 37 (C.A.A.F. 2001).  The military judge became involved in verbal out-of-court confrontations with a civilian witness that included profanity and physical contact.  The military judge also engaged in an ex parte discussion with the trial counsel on how to question this civilian witness about the scuffle.  The CAAF held the military judge’s failure to fully disclose the facts on the record deprived the parties of the ability to effectively evaluate the issue of judicial bias.  As such, the court remanded the case for a DuBay hearing.

(2)Comments about accused outside of court.  United States v. Miller, 48 M.J. 790 (N-M. Ct. Crim. App. 1998).  Assuming arguendo that military judge stated, upon hearing that the accused suffered a drug overdose and was medically evacuated to a hospital, that the accused was a “cocaine addict and a manipulator of the system” and that “perhaps the accused would die,” such comments did not establish a personal bias or prejudice on part of the judge.  Rather, the remarks indicated a high level of impatience and frustration with an unplanned delay in a scheduled court-martial proceeding.  The test applied by the Navy court was whether the remarks reasonably suggests a “deep-seated and unequivocal antagonism” towards the accused as to make fair judgment impossible.  See Liteky v. United States, 510 U.S. 540 (1994).

m.Conduct of trial & judicial advocacy.

(1) Impartial and objective stanceUnited States v. Hardy, 30 M.J. 757 (A.C.M.R. 1990).  Military judge erred in sua sponte initiating discussion of appropriateness of defense counsel’s sentencing argument and allowing trial counsel to introduce additional rebuttal.

(2)PraiseUnited States v. Carper, 45 C.M.R. 809 (N.M.C.R. 1972).  Improper for military judge to praise Government witness for his testimony.

(3)Examination.  Assess whether the judge’s questions assist either side of the case.  The number of questions is not a significant factor, but the tenor of those questions will be.  United States v. Johnson, 36 M.J. 866 (A.C.M.R. 1993).

(a)United States v. Foster, 64 M.J. 331 (C.A.A.F. 2007).  The accused, convicted of committing an indecent act against his daughter, argued on appeal that the military judge failed to remain impartial in his conduct toward their expert witness by:  (1) limiting their expert’s testimony, (2) questioning their expert, (3) failing to instruct the members that their expert was an expert and inaccurately summarizing her testimony, and (4) making inappropriate comments about their expert outside the panel’s presence.  The CAAF stated that a strong presumption exists that a military judge’s trial conduct is impartial and “the test is whether, taken as a whole in the context of [the] trial, [the] court-martial’s legality, fairness, and impartiality were put into doubt by the military judge’s actions.”  The court held that the military judge’s conduct, especially in relation to the inappropriate comments, departed from judicial propriety but “a reasonable observer would conclude that in the context of the whole trial, his actions did not compromise the court-martial’s legality, fairness, or impartiality.”

(b)United States v. Acosta, 49 M.J. 14 (C.A.A.F. 1998).  Accused was convicted of wrongful distribution and use of methamphetamine.  Defense case was based on entrapment.  Defense cross examination resulted in Government witness stating that he put undue pressure on the accused to purchase drugs.  When trial counsel failed to elicit the entrapment-negating information, military judge asked the witness 89 questions about the accused’s prior uncharged misconduct relating to a drug transaction that predated the drug offenses that were the basis of the court-martial.  Held:  no error.  The law provides the military judge with wide latitude in asking questions of witnesses.  The military judge has a right, equal to counsel’s, to obtain evidence.  Here, the information was clearly rebuttal evidence that was admissible once the defense raised the entrapment defense.

(c)United States v. Sanford, No. 200500993, 2006 CCA LEXIS 303 (N-M. Ct. Crim. App. Nov. 6, 2006) (unpublished).  During a motion to suppress incriminating statements made to “Capt M,” military judge did not have enough evidence to rule and notified the parties that he wanted to call three witnesses who had also given statements to Capt M in order to discern the procedures Capt M used to interview witnesses.  The military judge questioned the witnesses and offered counsel an opportunity to question them.  On appeal, the defense claimed that the military judge “abandon[ed] his neutral role in resolving the . . . motion to suppress.”  The court noted that under Article 46, UCMJ and MRE 614, the military judge is permitted to call or recall witnesses and has wide latitude in questioning witnesses.  As such, the military judge did not abandon his neutral role, as his efforts in calling the witnesses were an attempt to clarify the facts pertaining to the defense motion.  The court concluded that “a reasonable person observing the . . . court-martial would not doubt its fairness or the impartiality of the military judge.”  See also United States v. Johnson, No. 36433, 2007 CCA LEXIS 127 (A.F. Ct. Crim. App. Mar. 29, 2007) (unpublished) (the military judge did not abandon his impartial role when he questioned a defense witness (also a co-actor) about what sentence the co-actor received in his own trial when the defense did not object and the answer favored the defense).

(d)United States v. Hernandez, No. 200501599, 2007 CCA LEXIS 183 (N-M. Ct. Crim. App. Jun. 12, 2007) (unpublished) (the military judge did not become a “partisan advocate when he ‘ask[ed] clearly incredulous impeaching questions’ of the appellant’s mother who was a defense witness” because the defense did not object or move to disqualify the military judge and “a reasonable person . . . would not have doubted the military judge’s impartiality or the legality or fairness of the trial.”).

(e)United States v. Paaluhi, 50 M.J. 782 (N-M. Ct. Crim. App. 1999), rev’d on other grounds, 54 M.J. 181 (C.A.A.F. 2000).  Military judge did not abandon his impartial role despite accused’s claims that the judge detached role and became a partisan advocate when his questions laid the foundation for evidence to be admitted against the accused and when he instructed the accused to assist the Government to procure the presence of the prosecutrix.

(f)United States v. George, 40 M.J. 540 (A.C.M.R. 1994).  Military judge improperly limited defense voir dire and cross-examination, extensively questioned defense witnesses, limited number of defense witnesses, assisted TC in laying evidentiary foundations, and limited DC’s sentencing argument.

(g)United States v. Morgan, 22 M.J. 959 (C.G.C.M.R. 1986).  Military judge overstepped bounds of impartiality in cross-examining accused to obtain admission of knife, which trial counsel had been unsuccessful in obtaining admission.  But see United States v. Zaccheus, 31 M.J. 766 (A.C.M.R. 1990) (holding military judge’s assistance in laying foundation for the admission of evidence was not error; actions did not make the judge a partisan advocate.).

(h)Outer limits?  United States v. Bouie, 18 M.J. 529 (A.F.C.M.R. 1984) (no error on facts of case for military judge to ask 370 questions of accused). 

(4)Judge demonstrated partiality where evidentiary ruling under MRE 412 prevented accused from providing an exculpatory answer to questions the military judge allowed to be asked.  United States v. Watt, 50 M.J. 102 (C.A.A.F. 1999).  The military judge abandoned his impartial role when he ruled the accused could not respond to a question from the members (he had been asked “What reason did you have to believe she would have sex with you?”  His answer would have been that the complainant had a “reputation for being easy.”).  The military judge then repeatedly asked the accused the question, and allowed TC to badger him with similar questions.  Accused repeatedly stated that he could not answer the question asked.  Counsel then implied in closing that accused knew he had no reason to believe complainant would not have sex with him, as opposed to a simply inadmissible one.  Accused “was left to defend himself without assistance” from defense or military judge. 

(5)Intemperate comments from the bench concerning the case.  Remarks that suggest the military judge will hold a party responsible for taking a legally sound and available option (here, Article 62 appeal) undermine public confidence and should not be made.  United States v. Kirk, No. Misc. 20100443 (A. Ct. Crim. App. July 28, 2010) (unpublished).  The Government initially filed an Article 62 appeal, challenging the military judge’s decision to suppress the accused’s statements based on a violation of Article 31(b), UCMJ.  The ACCA reversed the military judge’s ruling on the suppression issue and then (on its own accord) commented on the possible recusal of the military judge from further proceedings in the case.  In ruling on the motion to suppress, the military judge had noted the Government could appeal his decision but added, “I do not expect to get overturned on this issue.”  The military judge continued:

[I]f this case does come, you know, back three or four months from now I will be the military judge in the case   . . . that is going to hear the facts in the future including the [first sergeant]’s testimony if they believe the statements should be admissible.  But if you want to appeal you are welcome to.  Is that your final decision, Government?  I just want to make sure.

The ACCA found that these “gratuitous comments” called into question the perception of fairness and impartiality of the military judge.  The court noted that RCM 902(a) directs recusal when a military judge’s “impartiality might reasonably be questioned” (emphasis added by the court).  While ACCA did not actually determine the military judge should be recused, the court opined “his comments suggest he prejudged the Government’s evidence, and intimated the futility of appealing his decision in light of his anticipated role as ultimate fact finder.”  The court concluded:  “We find his comments intemperate, injudicious, and inconsistent with the impartial role he is to play in the court-martial, creating at least the perception of unfairness to the parties, potentially undermining public confidence in his judicial role.”

(6)Intemperate remarks from the bench concerning witnesses, counsel, and panel members.  While incivility is not condoned, the case will not be set aside where the inappropriate remarks did not call into question the legality, fairness, and impartiality of the court-martial.  United States v. Todd, No. 200400513, 2007 CCA LEXIS 237 (N-M. Ct. Crim. App. Jul. 9, 2007) (unpublished).  During the trial, the military judge made several “injudicious” comments to witnesses, counsel, and even potential panel members.  The military judge even referred to the convening authority’s conduct in the case as “imbecilic.”  The N-MCCA characterized his statements as “needless comments,” “incessant sarcasm,” and “pompous condescension.”  The N-MCCA cautioned that military judges should be “patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others . . . [and the court] will not tolerate incivility by a military judge toward any trial participant, and that includes counsel.”  However, the court concluded that “[w]hile we do not condone that inappropriate comments made by the military judge, in the context of the entire trial, the legality, fairness, and impartiality of the court-martial were not put in doubt.”  Affirmed.

n.Assistance to a party. 

(1)United States v. Felton, 31 M.J. 526 (A.C.M.R. 1990).  Military judge should not have advised trial counsel on the order of challenges during voir dire.

(2)United States v. George, 40 M.J. 540 (A.C.M.R. 1994).  Military judge improperly limited defense voir dire and cross-examination, extensively questioned defense witnesses, limited number of defense witnesses, assisted TC in laying evidentiary foundations, and limited DC’s sentencing argument.

(3)United States v. Hurst, No. 200401383, 2007 CCA LEXIS 56 (N-M. Ct. Crim. App. Feb. 8, 2007) (unpublished) (holding that military judge did not abandon his impartial role by alerting the Government that they had failed to introduce evidence that two orders had been properly published, or by allowing Government to reopen the case over defense objection when the deficiency was a mere technical one and an earlier evidentiary ruling may have created confusion in the status of the evidence the military judge would consider).

(4)The outer limits?  United States v. Cooper, 51 M.J. 247 (C.A.A.F. 1999).  Military judge said in front of members that defense counsel had “thank[ed] [him] for helping perfect the government’s case” through questions of a Government witness.  Military judge also commented disparagingly on the poor quality of the defense counsel’s evidence, a videotape made by the accused’s wife.  These comments did not plainly cause him to lose his impartiality or the appearance of his impartiality.  Because the defense did not object to the comments, CAAF applied a plain error analysis, and found the judge’s questions were not improper.  Further the military judge explained to the members his neutral intent in asking questions and instructed the members to not construe his questions as favoring the Government.  CAAF found the military judge’s comments about his irritation with defense was inappropriate before the members, though not sufficient to divest him of the appearance of impartiality because his comments were couched within unequivocal instructions protecting the accused from prejudice.  Finally, his comments upon the quality of defense evidence were not impermissible, because just the R.C.M. 920(e)(7) discussion permits the military judge to comment on the evidence during instructions.  While the military judge’s comments “may have been improper,” the trial’s legality, fairness and impartiality were not put into doubt. 

o.Sentencing. 

(1)Discussion of religious principles.  United States v. Green, 64 M.J. 289 (C.A.A.F. 2007).  Prior to announcing the sentence, military judge provided the accused an explanation for the adjudged sentence.  He referenced the Bible and other religious principles.  On appeal, accused claimed that the military judge demonstrated an impermissible bias by interjecting his own religious views into the sentencing process.  Claims of judicial bias are evaluated to determine, “in view of the sentencing proceeding as a whole, whether a reasonable person would doubt the court-martial’s legality, fairness, and impartiality.”  The court found that if there was any error, it was harmless based on several factors.  First, the sentence did not “reflect prejudicial consideration of extraneous factors.”  Second, the defense first introduced the subject of religion during sentencing.  Third, the military judge expressly stated that “he would not consider the [accused’s] fealty to his religious tenets as a sentencing factor.”  Fourth, the defense did not object to the military judge’s remarks.  Lastly, the remarks focused primarily on proper sentencing principles and only incidentally referenced religion.  Therefore, military judge’s remarks did not reflect any bias in this case.

(2)Questioning of accused.  United States v. Burton, 52 M.J. 223 (C.A.A.F. 2000).  Military judge’s questions of the accused which revealed judicial sentencing philosophy did not reflect an inflexible predisposition where the military judge imposed only 30 days’ confinement, well below the jurisdictional limit of the court-martial and the maximum punishment for the offense.

(3)Summary of accused’s statements during providence inquiry given to panel by military judge.  United States v. Figura, 44 M.J. 308 (C.A.A.F. 1996).  Military judge did not become de facto witness for prosecution when during sentencing he gave members summary of accused statements during providence inquiry.  Defense and Government agreed to have military judge give summary, rather than introduce evidence through transcript or witness testimony.

(4)Evidence of racial bias or prejudice not directed at accused.  United States v. Ettinger, 36 M.J. 1171 (N.M.C.M.R. 1993).  Although remarks by military judge may demonstrate prejudice sufficient to constitute bias, accused must be a member of that class in order for comments to be disqualifying.

(5)Military judge’s inappropriate and intemperate remarks evaluated in light of whether they were so unreasonable as to indicate the judge abandoned his impartial role.  United States v. Thompson, 54 M.J. 26 (C.A.A.F. 2000).  Military judge did not depart from his impartial role despite issuing numerous adverse rulings against defense, taking over questioning from counsel, shutting off presentations, expressions of impatience and exasperation with counsel, and the making of condescending or berating comments about counsels’ performance.  Defense counsel repeatedly alluded to being “ineffective” or being forced into providing ineffective representation.  CDC requested that the military judge recuse himself under R.C.M. 902(a), 902(b)(1), 905. Military defense counsel became tearful and complained she would think twice before raising an issue.  Military judge countered “you need to investigate…a new line of work.”  While court noted much of the blame for breakdown between parties “stems from the military judge’s inappropriate and intemperate remarks to counsel on the record,” CAAF found military judge’s actions were not so unreasonable that he abandoned his impartial role.  Nevertheless, case returned to the Court of Criminal Appeals to order affidavits from both civilian and military defense counsel or to order a DuBay hearing on issue of ineffective assistance of counsel.

p.“Bridging the gap” sessions.

(1)General.  Evidence of judicial bias or error revealed during a ‘Bridging the Gap’ session will generally be evaluated according to the same legal standard as bias or error revealed prior to or during trial.

(2)Background.  The US Army Trial Judiciary Standard Operating Procedure encourages military judges to conduct a “post-trial critique” one-on-one with counsel after trial to improve trial skills.  Judges should limit such discussions to trial advocacy tips.     See United States v. Copening, 32 M.J. 512 (A.C.M.R. 1990) (suggesting “Bridging the Gap” may need reevaluation in light of issues arising concerning discussions by trial judges of legal issues that may come before them in future cases; ex parte discussions with counsel about the conduct of the trial; and discussions with counsel before the trial is final about rulings in the case).

(3)Improper sentencing considerations revealed.  United States v. McNutt, 62 M.J. 16 (C.A.A.F. 2005).  Military judge revealed during the “Bridging the Gap” session that he framed accused’s sentence to take into account good time credit.  Military judge sentenced the accused to seventy days with the idea that the accused would receive ten days good time credit and would serve sixty days of confinement.  CAAF reversed the sentence, finding the military judge improperly considered the collateral administrative effect of good time credit.  “[S]entence determinations should be based on the facts before the military judge and not on the possibility that [the accused] may serve less time than he was sentenced to based on the Army’s policy.” 

(4)Comments showing bias against homosexual conduct were improper where accused was charged with indecent acts with another maleUnited States v. Hayes, NMCCA 200600910, 2010 WL 4249518 (N-M. Ct. Crim. App. Oct. 28, 2010).  Male accused pled guilty to indecent acts with another male in the barracks.  Military judge made comments during a post-trial “bridging the gap” session with counsel that suggested a bias against homosexual conduct.  In a unanimous decision, the N-MCCA found the military judge’s comments created an appearance of bias that mandated disqualification; the court affirmed the findings and set aside the accused’s sentence.  Based on a DuBay hearing convened, the court found the following about the military judge’s actions at trial and during “Bridging the Gap”:

(5)Practical suggestions.  For military judges who elect to conduct “Bridging the Gap” sessions, consider the following: 

(a)Never conduct an ex parte session.

(b)Provide feedback on technical aspects of counsel performance is ok (e.g., “You had trouble admitting the prior statement of the victim.  Remember, the foundation for admitting a prior inconsistent statement consists of ______.”)

(c)Avoid discussing the deliberative process or judicial philosophy (e.g., “The reason I found him guilty was ____.”)

(d)Always bear in mind the trial may not be truly “over.”  United States v. Holt, 46 M.J. 853 (N-M. Ct. Crim. App. 1997), aff’d, 52 M.J. 173 (C.A.A.F. 1999) (suggesting that, where trial judge provides post-trial “practice pointers” to counsel prior to the cases being finalized, recusal would be mandated if the case were sent back for some sort of rehearing).

7.Actions when grounds for challenge exist

a.Further actions void.  United States v. Sherrod, 26 M.J. 30 (C.M.A. 1988) (holding when a judge is disqualified, all further actions are void).  See also United States v. Howard, 33 M.J. 596 (A.C.M.R. 1991) (holding when military judge becomes a witness for the prosecution, he is disqualified and all further actions, as in Sherrod, are void). United States v. Wiggers, 25 M.J. 587 (A.C.M.R. 1987) (holding when military judge recognized that his prior determination of witness’ lack of credibility disqualified him from acting as fact finder, judge should have recused himself rather than direct a trial with members). 

b.Judge’s sua sponte duty even after accused’s waiver of disqualification under RCM 902(e)United States v. Keyes, 33 M.J. 567 (N.M.C.M.R. 1991).  Military judge previously sat in a different case involving the accused.  Defense had no challenge under R.C.M. 902(b) and waived any challenge to the judge that might exist under R.C.M. 902(a).  Military judge properly recognized a sua sponte obligation to disqualify himself if warranted even with a defense waiver under 902(e).  The military judge, however, found no basis for disqualification.  Upheld by NMCMR.

c.Improper for recused judge to select replacementUnited States v. Roach, 69 M.J. 17 (C.A.A.F. 2010).  The accused’s case was originally affirmed by an Air Force Court of Criminal Appeals panel that included the chief judge.  The case went to CAAF and was remanded back to the AFCCA.  While the initial CAAF review was pending, the AFCCA chief judge commented about the case at two public events.  Following a motion by the defense, the chief judge recused himself from the case.  The chief judge then sent an e-mail to the executive officer for the Air Force TJAG recommending that a specific judge be appointed to replace the chief judge on the case.  The Air Force TJAG appointed this judge, who then convened the panel that considered the remanded case.  CAAF vacated the AFCCA decision and remanded for new Article 66 review, finding the chief judge improperly took action in the case after recusal when he recommended his replacement.  CAAF noted, “[E]ither a military judge is recused or he is not.”  Once recused, a judge shall not take further action in a case.  If a military judge deviates from this requirement, “no matter how minimally,” it “may leave a wider audience to wonder whether the military judge lacks the same rigor when applying the law.” 

D.Requirements of the Military Magistrate

1.Article 26a of the 2016 MJA establishes the office of the military magistrate.  The same statutory language is used to describe the qualifications of both military judges and military magistrates.  It is likely that the case law will apply the same standards of conduct to military magistrates as it has to military judges.

X.Expanded Judicial Powers and Remedial Action

A.Pre-referral proceedings

1.Article 30a of the 2016 MJA provides judges limited authority to hear and rule on certain issues prior to trial.

2.Such proceedings will follow procedures set forth in R.C.M. 309.

B.Post-trial proceedings. 

1.2016 MJA.

a.The military judge maintains control over the case once it is referred.  The case is not returned to the convening authority, though the convening authority may still grant clemency during post-trial processing.  The military judge loses jurisdiction over the case upon entry of judgment under Article 60c.

2.Legacy system.  Due to wholesale revision of the post-trial process, the following case law applies to the legacy system only.

a.Under the legacy system, the authority over post-trial issues depended on whether the military judge had authenticated the record.  Accordingly, case law focused on authentication as the most significant mile post in post-trial authority of a judge. 

b.Judges have power to order.  United States v. Griffith, 27 M.J. 42 (C.M.A. 1988).  (“Consistent with our conclusion … that Congress intended for a military judge to have the power to conduct post-trial proceedings until authentication of the record has taken place, we are convinced that … before authenticating the record of trial … he may take remedial action on behalf of the accused without awaiting an order therefor by an appellate court.”); United States v. Scaff, 29 M.J. 60 (C.M.A. 1989).  (holding that Article 39(a) empowers judge to order a post-trial session to consider newly discovered evidence and to take remedial action, including, in proper cases, to set aside findings of guilt and sentence);  United States v. Mahoney, 36 M.J. 679 (A.F.C.M.R. 1993) (holding military judge did not usurp power by ordering a post-trial session to inquire into possible improper command intervention after commander ordered accused into confinement, contrary to order of military judge after court-martial; further, that judge did not usurp power by reducing accused’s sentence by 18 months as remedy for commander’s intervention.)

c.Responsibility to correct errors in trial proceedings.  United States v. Pulido, No. 20011043 (A. Ct. Crim. App. Mar. 19, 2004) (unpub.) Findings and sentence set aside due to lack of properly authenticated or approved findings of guilty.  Prior to authenticating the record, the military judge determined that her originally announced findings were incorrect.  She amended the findings without a post-trial session; however, the amended findings neglected to reflect an announcement of guilt on a separate charge to which the accused had pled guilty.  The court declared that “Article 53, UCMJ, and R.C.M. 922(a) require that the court-martial announce its findings to the parties promptly, in an open court, after they have been determined.” (emphasis in original).  Because the verdict was ambiguous, there was material prejudice to the accused’s substantial rights.  Military judge’s options included:  reviewing tapes to determine whether she announced the reported findings; if record inaccurately reported findings, she should not have authenticated it; returning record of trial to trial counsel for further examination and correction; directing proceedings in revision to correct error, so long as accused suffered no material prejudice.

d.Abuse of discretion where exculpatory evidence was uncovered after trial and judge denied defense request for post-trial Article 39(a).  United States v. Meghdadi, 60 M.J. 438 (C.A.A.F. 2005).  Military judge denied defense request for a post-trial Article 39(a) based on newly discovered evidence, specifically an audiotape.  Accused’s conviction centered on distributing cocaine, based on testimony by CID agent and CID informant.  Defense argued at trial that CID agent was trying to make several drug cases to advance his career and that the informant lied to obtain a sentencing deal offered by CID.  After the accused’s trial and during the CID informant’s trial, an audiotape surfaced lending credence to the accused’s defense theory.  CAAF held the military judge abused his discretion by denying the Article 39(a) session which resulted in prejudice to the accused because of the failure “to afford [the accused] a forum in which to make his case.”  The CAAF stated “the [military judge] misapprehended the purpose of the Article 39(a) session, made factual findings that are not supported by the record, applied an erroneous legal standard, misperceived the evidentiary value of the audiotape, and made no record of any weighing of the new evidence against the evidence at trial, either on the merits or in sentencing.”

e.Judge should take remedial action where error identified.  United States v. Lepage, 59 M.J. 659 (N-M. Ct. Crim. App. 2003).  Military judge committed plain error by admitting record of Article 15 into evidence.  He determined that admitting the exhibit was erroneous in a post-trial 39(a) session, and that the erroneously-admitted exhibit was considered by the court in arriving at a sentence.  However, military judge failed to take corrective action during that hearing, and recommended that the convening authority disapprove the Bad-Conduct Discharge; convening authority declined to follow recommendation.  Held, “This case should not even be before us for review . . . the military judge had the authority under RCM 1102(b)(2) to take corrective action.”

C.Responsibility to manage post-trial preparation of the record. 

1.Judges had limited authority to manage post-trial processing under the legacy system.  However, appellate courts did recognize such a judicial responsibility.  Under the 2016 MJA, the responsibility of the judge for post-trial processing is much more direct, because the case never returns to convening authority control.  The reasoning in United States v. Chisholm, 58 M.J. 733 (A. Ct. Crim. App. 2003), aff’d, 59 M.J. 151 (C.A.A.F. 2003), decided under the legacy system, is reproduced here.  In that case, the court noted that military judges, as empowered by Congress and the President, have both a duty and a responsibility to take active roles in “directing” the timely and accurate completion of court-martial proceedings.  After adjournment, but prior to authentication of the record of trial, military judge must ensure that Government is proceeding with due diligence to complete the record of trial as expeditiously as possible, given the totality of the circumstances of that accused’s case.  If the military judge determines that the record preparation is proceeding too slowly, he may take remedial action without awaiting an order from the intermediate appellate court.  The exact nature of the remedial action is within the sound judgment and broad discretion of the military judge, but could include, among other things: (1) directing a date certain for completion of the record with confinement credit or other progressive sentence relief for each day the record completion is late; (2) ordering the accused’s release from confinement until the record of trial is completed and authenticated; or, (3) if all else fails, and the accused has been prejudiced by the delay, setting aside the findings and the sentence with or without prejudice as to a rehearing.  Staff judge advocates and convening authorities who disregard such remedial orders do so at their peril. 

XI.Counsel

A.Counsel Qualifications.

1.GCM. Article 27(b), UCMJ. “Trial counsel, defense counsel, or assistant defense counsel  -  

a.must be a judge advocate who is a graduate of an accredited law school or is a member of the bar of a federal court or of the highest court of a State . . . and

b.must be certified as competent to perform such duties by The Judge Advocate General of the armed force of which he is a member.”  NOTE:  In capital cases, and only if necessary, at least one defense counsel shall be learned in the law applicable to such cases, and this counsel may be a civilian.

2.SPCM.  Art 27(b).  Trial counsel, assistant trial counsel, defense counsel, and assistant defense counsel shall have the shall have the qualifications set forth in Article 27(b).   However, R.C.M. 502(d) requires defense counsel, assistant defense counsel, and associate defense counsel to meet Article 27(b) criteria in general or special courts-martial.

3.Under R.C.M. 502(d)(1)(B), any commissioned officer may be detailed as trial counsel in special courts-martial, or as assistant trial counsel in general or special courts-martial.  However, assistant defense counsel must meet Article 27(b) criteria.  See R.C.M. 502(d)(2).

4.Summary Court-Martial.  Middendorf v. Henry, 425 U.S. 25 (1976).  The Sixth Amendment right to counsel does not extend to SCM.

B.Disqualification of Counsel.

1.Defect in appointment or lack of qualifications tested for prejudice

a.Wright v. United States, 2 M.J. 9 (C.M.A. 1976).  Defects in appointment or qualifications of trial counsel are matters of procedure to be tested for prejudice and have no jurisdictional significance.

b.United States v. Harness, 44 M.J. 593 (N-M. Ct. Crim. App. 1996).  Presence of defense counsel who was neither graduate of accredited law school nor properly admitted to practice did not constitute ineffective assistance of counsel under Sixth Amendment.  Performance of defense counsel measured by combined efforts of entire defense team.  Note that Harness was decided under a previous version of RCM 502.

c.Inactive status of civilian attorney.  United States v. Steele, 53 M.J. 274 (C.A.A.F. 2000).  Inactive status of civilian attorney in states in which he is licensed to practice does not bar practice before military courts-martial.

d.Assistant trial counsel not sworn.  United States v. Roach, No. S31143, 2007 CCA LEXIS 402 (A.F. Ct. Crim. App. Sep. 13, 2007) (unpublished).  The assistant trial counsel in the case had not been sworn under Article 42(a), UCMJ, prior to serving on the court-martial.  The defect was not caught until after trial. The lack of qualified counsel is not a jurisdictional defect requiring reversal, so the error was tested for prejudice.  The defense did not object or raise the issue in clemency, and the accused’s pleas were voluntary and provident.  Therefore there was no prejudice.

2.Due to potential disqualification as witness.  United States v. Baca, 27 M.J. 110 (C.M.A. 1988).  Although the accused is not fully and absolutely entitled to counsel of choice, he is absolutely entitled to retain an established relationship with counsel absent demonstrated good cause.

3.Due to incompetence.  United States v. Galinato, 28 M.J. 1049 (N.M.C.M.R. 1989).  Military judge had discretion to remove accused’s counsel of choice, and to appoint different counsel, where counsel of choice had effectively withdrawn from proceedings.

4.Due to conflict of interest. 

a.Test for disqualification.  United States v. Rushatz, 31 M.J. 450 (C.M.A. 1990).  Accused met with legal assistance attorney who later moved to the criminal law department.  The counsel disclosed to the detailed trial counsel that he had represented the accused on an unrelated matter.  Court adopted three-part test to determine if trial counsel disqualified: (1) was there former representation (2) was there a substantial relationship between subject matters, and (3) was there a subsequent proceeding.  In this case, legal assistance attorney did not act as trial counsel, though he did appear with trial counsel at Article 32.

b.Trial counsel’s investigatory activities did not rise to the level of de facto Article 32 investigating officer.  United States v. Strother, 60 M.J. 476 (C.A.A.F. 2005).  Trial counsel had served as the command SJA and, in that capacity, conducted interviews involving the accused’s misconduct and discussed various aspects of the case, including procedural matters, substantive issues, and investigative options, with the officer ordered to conduct the preliminary inquiry.  During this preliminary inquiry, a new SJA arrived and the trial counsel assumed other legal duties.  Upon completion of the preliminary inquiry, charges were preferred and an Article 32 investigation directed.  At this time, trial counsel was detailed to the case.  At trial and on appeal, defense asserted that the trial counsel was disqualified as a matter of due process and because under Article 27(a)(2) he acted as an “investigating officer.”  Article 27(a)(2) states that no person who has acted as an investigating officer may later act as a trial counsel.  While “investigating officer” is not defined in Article 27, the CAAF, after a thorough historical discussion on the “investigating officer” disqualification, interpreted the language to apply to an Article 32 investigating officer.  The CAAF then held trial counsel’s involvement did not interfere with the accused’s due process rights and that the accused did not “demonstrate that the [TC’s] activities so departed from the normal role of prosecutor as to make him a de facto Article 32 ‘investigating officer.’” 

c.Assistant trial counsel’s representation of accused’s wife on an unrelated legal assistance matter did not disqualify counsel where neither the time period of representation nor subject matter of representation coincided and the trial counsel gained no specific confidential information from the former representation.  United States v. Humpherys, 57 M.J. 83 (C.A.A.F. 2002).  Assistant trial counsel (ATC) previously represented accused in legal assistance matter (child support issue).  At trial, defense moved to disqualify ATC alleging that ATC used information from this prior representation while interviewing the accused’s wife (a potential defense sentencing witness).  Military judge denied motion to disqualify ATC because: (1) the charges did not relate to the period of time of the prior representation; (2) the subject matter of prior representation had no substantial relationship to any matter at issue in the court-martial; and (3) military judge accepted ATC’s representation that she did not recall the specifics of the prior representation.  When the defense called the wife as a witness, the ATC conducted cross-examination.  In affirming, the court held the accused failed to demonstrate either (1) that the subject of the prior representation was substantially related to the pending court-martial charges (adultery, sodomy, violation of lawful general regulation, and false official statements); or (2) that specific confidential information gained by ATC during the prior representation might have been used to the disadvantage of the accused in the present case.  Accused could have requested military judge review legal assistance file, which still existed, or accused could have testified in closed hearing with sealed record as to the matters of prior representation.  Accused’s mere conclusory assertions were not sufficient.

d.Romantic relationship between defense counsel and accused disqualified counsel from representing accused.  United States v. Cain, 59 M.J. 285 (C.A.A.F. 2004).  Accused alleged that his lead trial defense counsel had a coerced, homosexual relationship with him that created an actual conflict of interest and deprived him of effective assistance of counsel.  At DuBay hearing, the military judge found the relationship was consensual and that accused desired continued representation by his counsel, despite advice from two civilian counsel to fire him.  ACCA held the accused did not meet the two-pronged test to establish IAC due to an actual conflict of interest in a guilty plea:  (1) that there was an actual conflict of interest; and (2) that the conflict adversely affected the voluntary nature of the guilty plea.  The CAAF reversed, finding that the “volatile mixture of sex and crime in the context of the military’s treatment of fraternization and sodomy as criminal offenses” resulted in a “uniquely proscribed relationship” that was “inherently prejudicial and created a per se conflict of interest in counsel’s representation of the Appellant.”  The conflict resulted in ineffective assistance of counsel under the Sixth Amendment.  Findings and sentence set aside.

e.Civilian counsel required to withdraw where his firm also represented the estranged wife of the accused in the divorce proceedings.  United States v. Beckley, 55 M.J. 15 (C.A.A.F. 2001).  At issue was the accused’s right to retain civilian counsel whom the military judge determined to be disqualified because of the conflict of interest with the accused’s estranged wife, who was represented by the lawyer’s firm in a divorce action against the accused.  After a detailed factual analysis, CAAF affirmed ACCA, holding that the civilian counsel had an actual conflict of interest and was required to withdraw.

f.Representation of Servicemember in a companion case may be disqualifying.  United States v. Smith, 44 M.J. 459 (C.A.A.F. 1996).  Defense counsel previously represented another airman in companion case for Article 15 proceedings.  Former client did not testify at trial, but testimony presented via stipulation of expected testimony.  Accused consented to representation.  Court held that client could not make informed decision regarding representation, even after being advised by counsel, because counsel did not understand ramifications of conflict issue; former client was still subject to court-martial even though nonjudicial punishment had been imposed; and court was concerned that accused denied fair trial because of stipulation rather than cross-examination of important witness.

g.Disagreement in strategy.  United States v. McClain, 50 M.J. 483 (C.A.A.F. 1999).  Accused complained his lawyers were conspiring with the trial counsel.  The accused also had several disagreements with his defense counsel, and told the military judge his counsel had lied to him.  In response, one of his counsel told the military judge that the accused has told “lies here today in court.”  Nevertheless, the military judge denied counsel’s request for release, and accused ultimately requested both counsel represent him.  The court held the issue of a conflict of interest (because of a disagreement in strategy) was waived by the accused.  The defense was entitled to respond to the accused’s assertions.   

h.Complaint made against counsel.  United States v. Thompson, 51 M.J. 431 (C.A.A.F. 1999).  A pretrial complaint against defense counsel, made by accused’s wife, did not create a conflict of interest disqualifying him from participation in this case.  Court also held that accused was not denied effective assistance of counsel when military defense counsel cautioned him about retaining civilian counsel and discouraged him from getting help from a psychologist. 

i.Military judge has a sua sponte duty to explore conflicts of interest where raised by the record.  United States v. Murphy, 50 M.J. 4 (C.A.A.F. 1998).  The Government called accused’s pretrial confinement cell mate as a witness against the accused.  A member of the accused’s defense team had previously represented the witness and had negotiated a favorable PTA in part based on information the witness had learned from the accused.  After negotiation of the PTA, the counsel then withdrew from witness’s case.  Additionally, the military judge in the accused’s case was the same judge who had presided over witness’ guilty plea.  At the accused’s trial, the defense did not impeach the witness, even though he had been convicted of several crimes involving dishonesty and deceit.  The court held the military judge had a sua sponte duty to resolve conflict questions on the record and defense had a duty to discuss potential or actual conflicts of interest with accused.  Such multiple representation creates a presumption that a conflict of interest existed, one that can be rebutted by the actual facts.  In this case, there was a clear conflict of interest. 

j.Trial counsel who acted as Accuser.  United States v. Reist, 50 M.J. 108 (C.A.A.F. 1999).  Assistant TC signed charge sheet and was present in court, identified as “accuser” on the record, and argued at sentencing that accused’s conduct was “cowardly criminal conduct of a sexual pervert.”  While ATC was accuser under Article 1(9), UCMJ, and clearly disqualified to act as ATC (RCM 504(d)(4)(A)), the court held defense waived the issue, and found no plain error. [NOTE: The current relevant R.C.M. section is 502(d)(3)(A).]

k.Due to prior duty on opposite side.  United States v. Smith, 26 M.J. 152 (C.M.A. 1988) (trial counsel who had been a member of the Trial Defense Service and acted as a sounding board for part of the defense case was not disqualified); United States v. Sparks, 29 M.J. 52 (C.M.A. 1989) (despite Article 27 violation, accused cannot complain when, “after full disclosure and inquiry by military judge,” he gives informed consent to representation by defense counsel who previously acted for prosecution).

l.Based on bar statusUnited States v. Steele, 53 M.J. 274 (C.A.A.F. 2000).  No error where accused’s civilian DC was carried “inactive” by all state bars of which he was member (and such status prohibited him from practicing law).  R.C.M. 502(d)(3)(A) requires that a CDC be a member of a bar of a federal court or bar of the highest court of the state, or a lawyer authorized by a recognized licensing authority to practice law (and determined by military judge qualified to represent the accused).   CAAF looked to federal case law holding that neither suspension nor disbarment creates a per se rule that continued representation is constitutionally ineffective (CAAF also noted a Navy instruction permits military counsel to remain “in good standing” even though they are “inactive.”).  Counsel are presumed competent once licensed. [NOTE: The current relevant R.C.M. section is 502(d)(2)(A).]

C.Replacement Counsel

1.Severance of attorney-client relationship.  United States v. Allred, 50 M.J. 795 (N-M. Ct. Crim. App. 1999).  A preexisting attorney-client relationship may be severed by Government only for good cause.  “Good cause” did not exist where defense counsel had entered into relationship with accused concerning pending charges, charges were dismissed during the time accused was medically evacuated for evaluation of heart problems, and DC was told by SDC that, due to pending PCS, DC would not be detailed to case if charges re-preferred.  Court found that DC’s commander’s finding of unavailability was abuse of discretion.  Prejudice presumed and findings and sentence set aside.

2.Duty to provide counsel.  United States v. Johnston, 51 M.J. 227 (C.A.A.F. 1999).  Where detailed defense counsel left active duty prior to preparation of a new SJA recommendation, failure of the convening authority to detail substitute counsel for accused deprived him of his opportunity for sentence relief with the convening authority and was prejudicial to accused’s substantial rights. 

XII.Accused

A.      Accused’s Forum Selection

1.Forum selection requests evaluated for substantial compliance with R.C.M. 903(a) and (b). 

a.Request for trial by judge alone.  United States v. Turner, 47 M.J. 348 (C.A.A.F. 1997).  Where the military judge fully explained the accused’s rights as to forum, and defense counsel stated at trial that the accused wished to be tried by military judge alone, it was error for the accused not to state his election either in writing or orally on the record.  However, the facts of the case showed substantial compliance with Article 16, UCMJ, and no material prejudice to the substantial rights of the accused.

b.Request for trial before members.  RCM 903(b)(1).  United States v. Alexander, 61 M.J. 266 (C.A.A.F. 2005).   Military judge advised the accused of his forum selection rights, which the accused requested to defer.  During a later proceeding, the military judge stated that he was told an enlisted panel would be hearing the case and defense did not object to the judge’s statement.  The accused, however, failed to state in writing or on the record his request for enlisted members in violation of Article 25, UCMJ and R.C.M. 903(b)(1).  The CAAF held that the error in the accused failing to personally select forum on the record is a procedural, as opposed to jurisdictional, issue.  The court stated, “[the] right being addressed and protected in Article 25 is the right of an accused servicemember to select the forum[,] . . . [t]he underlying right is one of forum selection, not the ministerial nature of its recording.”  The CAAF held that the record reflected that the accused selected court-martial by panel members and the accused failed to show that the error in recording his forum selection resulted in any prejudice.

c.United States v. Morgan, 57 M.J. 119 (C.A.A.F. 2002) (military judge erred by not obtaining on record defendant’s personal request for enlisted members to serve on court-martial, but error was not jurisdictional, and under circumstances, it did not materially prejudice substantial rights of defendant)

d.United States v. Daniels, 50 M.J. 864 (A. Ct. Crim. App. 1999). Where accused was tried by enlisted members and there was no evidence on the record reflecting personal forum selection, jurisdiction was properly found by a military judge in an ACCA-ordered DuBay hearing, which established that accused had discussed her forum choices with her counsel, and that, prior to the assembly of the court, she had decided to elect trial by an enlisted panel, and that her counsel had then presented a document to TC stating that the accused requested an enlisted panel.  Failure to elicit forum selection on the record was a technical defect in the application of Article 25, a defect that, as was clear from the DuBay hearing, did not prejudice the substantial rights of the accused. 

e.United States v. Lanier, 50 M.J. 772 (A. Ct. Crim. App. 1999), aff’d, 53 M.J. 220 (C.A.A.F. 2000) (summary disposition).  Counsel’s consulting with the accused and announcing on the record, in response to judge’s question, “We will have a court with enlisted” substantially complied with the terms of Article 25(c)(1).

f.United States v. Gray, 51 M.J. 1 (C.A.A.F. 1999).  No error where accused, who had signed his request for enlisted members with words  “Negative Reading,” was directed by military judge to elect a forum and he subsequently signed his name above the words “Negative Reading;” any confusion the accused experienced concerned his name and not his forum choices.

B.Trial in Absentia.  R.C.M. 804(c).

1.The accused shall be considered to have waived the right to be present if after initially present he/she (1) voluntarily absents self after arraignment, or (2) is removed for disruption.  For requirements of a valid arraignment, see R.C.M. 904. 

2.United States v. Bass, 40 M.J. 220 (C.M.A. 1994).  Accused did not return for trial after being arraigned 23 days earlier (delay for sanity board).

3.Inference of voluntary absence.  United States v. Sharp, 38 M.J. 33 (C.M.A. 1993).  Notice to accused of exact trial date or that trial may continue in his absence, while desirable, is not a prerequisite to trial in absentia.  Burden is on the defense to go forward and refute the inference of a voluntary absence.  Military judge must balance public interest with right of accused to be present.

4.Proper arraignment required.  United States v. Price, 43 M.J. 823 (A. Ct. Crim. App. 1996), rev’d, 48 M.J. 181 (C.A.A.F. 1998).  Trial in absentia is not authorized when military judge fails to conduct a proper arraignment.  Reversing the ACCA, the CAAF stated that when military judge asked accused whether charges should be read, but failed to call upon the accused to plead, this constituted a defective arraignment.  Waiver by voluntary absence will not operate to authorize trial in absentia if arraignment is defective, particularly considering that military judge failed to also inform the accused that trial would proceed in accused’s absence.  See generally RCM 904 (“Arraignment . . . shall consist of reading the charges and specifications to the accused and calling on the accused to plead.”). 

5.Accused sleeping during trial.  United States v. Thrower, 36 M.J. 613 (A.F.C.M.R. 1993).  While giving unsworn statement during sentencing, accused succumbed to effects of sleeping pills he took earlier and remainder of statement given by defense counsel.  Held to be a voluntary absence.

C.      Accused’s Rights to counsel.

1.Pro se representation.  R.C.M. 506(d).

a.United States v. Mix, 35 M.J. 283 (C.M.A. 1992).  Before approving accused’s request to proceed pro se, R.C.M. 506(d) requires a finding that the accused understands: (1) the disadvantages of self-representation and; (2) if the waiver of counsel was voluntary and knowing.  Opinion includes an appendix of suggested questions.

b.  Cf. Iowa v. Tovar, 541 U.S. 77 (2004).  Prior to proceeding pro se at a guilty plea, the Sixth Amendment is satisfied if the trial court “informs the accused of the nature of the charges against him, of his right to be counseled regarding his plea, and of the range of allowable punishments attendant upon the entry of a guilty plea.”  Warnings that: “(1) advise the defendant that waving the assistance of counsel in deciding whether to plead guilty [entails] the risk that a viable defense will be overlooked; and (2) admonish[ing] the defendant that by waiving his right to an attorney he will lose the opportunity to obtain an independent opinion on whether, under the facts and applicable law, it is wise to plead guilty” are not required by the Sixth Amendment.

c.  Godinez v. Moran, 509 U.S. 389 (1993).  Supreme Court says the standard of competence to proceed pro se is no different than that required for an accused to stand trial.  Military appellate courts appear to imply a higher level of competence for accused to waive counsel.  See also United States v. Freeman, 28 M.J. 789 (N.M.C.M.R. 1989) (“[H]igher standard of competence must exist for an accused to waive counsel and conduct his own defense than would be required to merely assist in his own defense”).  United States v. Streater, 32 M.J. 337 (C.M.A. 1991) (accused was competent to “represent himself and to actually defend himself”).

2.Individual military counselR.C.M. 506(b); Article 38(b), UCMJ; AR 27-10, para 5-7 (11 May 2016); United States v. Spriggs, 52 M.J. 235 (C.A.A.F. 2000).  If an individual military counsel request has been denied and the defense claims improper severance of attorney-client relationship, the defense bears the burden of demonstrating that the accused had a viable ongoing attorney-client relationship regarding the substance of the charges.  Defense must demonstrate both an understanding as to the nature of future representation and active engagement by the attorney in preparation of the case.  If the defense makes such showing, the burden shifts to the Government to demonstrate good cause for severance.  If the defense cannot make such showing, the burden shifts to the Government to demonstrate that the judge advocate was not reasonably available under applicable criteria.  If there was a prior attorney-client relationship that is no longer viable at the time of the request, the Government is not required to demonstrate good cause, but must demonstrate that the other criteria warrant disregarding the relationship under the circumstances.  Absent Government misconduct, the routine separation of a judge advocate from active duty normally terminates any attorney-client relationship established on the basis of the attorney’s military status, except when: (1) the attorney agrees to represent the client in his or her civilian capacity; or (2) the attorney enters the reserves and is ordered to represent the client to the extent permitted by applicable law based upon a determination by the appropriate official of reasonable availability.

3.Civilian Counsel.

a.Delay to obtain civilian counsel.

(1)United States v. Wiest, 59 M.J. 276 (C.A.A.F. 2004).  Military judge abused his discretion in denying defense request for delay to obtain civilian counsel.  “It should . . . be an unusual case, balancing all the factors involved, when a judge denies an initial and timely request for a continuance in order to obtain civilian counsel, particularly after the judge has criticized appointed military counsel.”  Applying the Miller factors, below, the court held that the judge erred and set aside findings and sentence.

(2)United States v. Miller, 47 M.J. 352 (C.A.A.F. 1997).  Military judge abused his discretion by denying request for delay in post-trial hearing in order for accused to obtain civilian counsel.  While the right to retain civilian counsel is not absolute, “an unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay violates the right to the assistance of counsel.”  Factors used to determine whether military judge abused his discretion include:  surprise, timeliness of the request, other continuance requests, good faith of moving party, and prior notice.

(3)Foreign counselR.C.M. 502(d)(3)(b); Soriano v. Hosken, 9 M.J. 221 (C.M.A. 1980).  Military judge determines if individual foreign civilian counsel is qualified.

XIII.Other Court-Martial Personnel

A.      Staff Judge Advocates.

1.General.  Article 6(a) governs assignment of staff judge advocates.  Article 6(c) specifies who may not serve as the staff judge advocate or legal officer to the reviewing authority on a case.  Previous participation as a “preliminary hearing officer, court member, military judge, military magistrate, or appellate judge” is disqualifying.  Article 6, UCMJ.  

2.Disqualification Cases

a.While a staff legal officer who merely gives general advice to prosecutors or investigators is not disqualified from participating in the post-trial process, when the same advisor becomes a participant in the prosecution, she is disqualified.  United States v. Gutierrez, 57 M.J. 148 (C.A.A.F. 2002).  The accused pled guilty to multiple specifications of larceny, conspiracy to commit larceny, robbery, conspiracy to commit robbery and receiving stolen property.  Prior to entry of pleas, the accused moved to dismiss all charges and specifications for lack of speedy trial.  The Chief of Justice testified in opposition to the motion and the military judge denied the motion.  Later, the COJ assumed duties as the SJA and prepared the post-trial recommendation (PTR) in the accused’s case.  DC responded to the PTR claiming that the COJ was disqualified from preparing the PTR because of her involvement in the case, specifically her testimony in opposition to the speedy trial motion.  Since Government counsel assumed a prosecutorial role in accused’s case prior to her appointment as SJA, she was disqualified from preparing the SJA post-trial recommendation which involved evaluating the prosecution.  

b.Where SJA imputes actions of TC to herself, the SJA is disqualified from participating in the post-trial process.  United States v. Taylor, 60 M.J. 190 (C.A.A.F. 2004).  Eight days after the accused’s court-martial, trial counsel published an article in the base newspaper warning commanders to properly prepare adverse personnel records.  The article resulted from the trial counsel’s inability to admit the accused’s adverse personal records, because of numerous administrative errors, which the trial counsel characterized as a disservice to justice.  Based on the article, the defense sought the disqualification of the SJA.  The SJA, while stating the article could be imputed to him in an addendum recommendation, took action on the case.  The CAAF held where a SJA imputes a disqualification to himself his participation in the post-trial review process is error, that the accused made a “colorable showing of prejudice,” and returned the case for a new post-trial review.

c.Performing trial counsel duties—even administrative ones—can effectively cause staff judge advocate to be “trial counsel.”  United States v. Stefan, 69 M.J. 256 (C.A.A.F. 2010).  Chief of Justice caused charges to be served on the accused (a duty reserved for detailed trial counsel under RCM 602) and then signed charge sheets as “Trial Counsel.”  The Chief of Justice later, in her capacity as Acting SJA, signed the addendum to the post-trial staff judge advocate’s recommendation (SJAR), recommending the convening authority not grant clemency.  Defense argued that under Article 6(c), no person who has acted as trial counsel may later act as SJA in the same case.  CAAF held the Acting SJA was disqualified based on her limited administrative actions as trial counsel.  However, the court affirmed, finding the error did not prejudice the accused. 

d.Same individual cannot serve as SJA and military judge in same caseUnder R.C.M. 1106(b) and Article 6(c), UCMJ, a person cannot serve as the SJA and military judge in the “same case.”  R.C.M. 1106(b) governs the post-trial SJA recommendation.  Article 6(c) more broadly governs action an SJA assisting “any reviewing authority.”  See United States v. Moorefield, 66 M.J. 170 (C.A.A.F. 2008) (per curiam).  The staff judge advocate (SJA) served as a military judge in a prior, unrelated, court-martial of the accused.  On appeal, the defense argued the SJA should have been disqualified, citing R.C.M. 1106 and Article 6, UCMJ.  In a short per curiam opinion, the CAAF held the SJA was not disqualified.  The two courts-martial were several years apart and involved different victims and evidence.  The judge advocate properly acted as SJA and military judge in the two cases as they were “neither the same case for purposes of RCM 1106 or Article 6, UCMJ, nor the same matter, for purposes of [Navy professional responsibility rules].” 

3.Other SJA powers

a.SJA has no authority to make ‘de facto’ denial of immunity request by refusing to process to the CA.  United States v. Ivey, 55 M.J. 251 (C.A.A.F. 2001).  At issue was whether Government failed to process the accused’s requests for immunity for four civilian witnesses.  Here, the CA did not deny the defense request for immunity until after trial and chose not to forward the request to Department of Justice.  In addition, military judge denied the defense request to grant immunity or to abate the proceedings to wait for CA action.  The CAAF held trial counsel and SJAs do not have the authority to de facto deny a request for immunity by withholding it from the convening authority.  All requests for immunity, from either the Government or the defense, must be submitted to the CA for a decision; the CA does not have to forward an immunity request for a civilian to DOJ if the CA intends to deny that request; and all three prongs of R.C.M. 704(e) must be met before a military judge may overrule a CA’s decision to deny a request for immunity: (1) the witness intends to invoke the right against self-incrimination to the extent permitted by law if called to testify; (2) Government has engaged in discriminatory use of immunity to obtain a tactical advantage, or the Government, through its own overreaching, has forced the witness to invoke the privilege against self-incrimination; and (3) the witness’ testimony is material, clearly exculpatory, not cumulative, not obtainable from any other source and does more than merely affect the credibility of other witnesses.  In this case, the military judge did not abuse his discretion by refusing to abate proceedings (to wait for CA action) where he found there had been no discriminatory use of immunity or Government overreaching, and proffered testimony was not clearly exculpatory.

b.SJA’s promise of immunity will be treated as de facto immunity even though RCM 704 is not met.  United States v. Jones, 52 M.J. 60 (C.A.A.F. 1999).  Accused was charged with conspiracy to submit a false claim, larceny, and other offenses.  His co-accused were offered punishment under Article 15 if they agreed to testify against the accused.  When the co-conspirators invoked their rights and seemed hesitant to cooperate, the SJA called the RDC and said that the three soldiers would be court-martialed if they did not testify in accordance with their agreement.  The CAAF said the informal agreements were tantamount to a grant of de facto immunity, that the President had not formulated rules governing such “informal immunity,” but that there was no command influence and no material prejudice to the accused.

B.Disqualification of Article 32 Investigating OfficersUnited States v. Holt, 52 M.J. 173 (C.A.A.F. 1999).  Article 32 investigating officer recommended accused’s case be referred capital for his alleged murder of a fellow biker.  After referral, the Article 32 investigating officer attended a forensic evidence course and, upon returning to the command, gave trial counsel the name and phone number of a forensic expert.  Ultimately, this expert testified for Government that the spatter patterns on jeans seized from the accused were consistent with a stabbing.  CAAF noted that an “investigating officer is disqualified” from acting subsequently “in the same case in any other capacity” under RCM 405(d)(1), and that his provision of information solely to the assigned prosecutor may have created at least the appearance of impropriety by providing trial counsel with information that was neither transmitted to the commander who ordered the investigation nor served on the accused.  Nevertheless, the court found no prejudicial error that would warrant giving the accused a new trial; the decision to submit the jeans for testing and to call the expert witness were solely the decisions of the trial counsel.

C.Court ReportersR.C.M. 502(e).  See United States v. Yarbrough, 22 M.J. 138 (C.M.A. 1986).  Accuser improperly acted as court reporter but reversal not required where accuser only operated microphone system and did not transcribe proceedings or prepare the record of trial.

D.Interpreter.  R.C.M. 502(e).  Must be qualified and sworn.

E.BailiffR.C.M. 502(e).  Cannot be a witness.  United States v. Martinez, 40 M.J. 82 (C.M.A. 1994).  Military judge committed prejudicial error when, during sentencing deliberations, he conducted an ex-parte communication with bailiff.

F.Drivers.

1.United States v. Aue, 37 M.J. 528 (A.C.M.R. 1993).  Military judge’s assigned driver told witnesses waiting to testify that the MJ told her that “he had already decided the case.”  Military judge addressed issue at post-trial Article 39(a) hearing as motion for mistrial and found that:  (1) he had never made such a statement; and (2) that driver was trying to impress witnesses with her apparent “inside information.”  ACMR returns for DuBay hearing and indicates that MJ should have recused himself at the post-trial Article 39(a) session.  Otherwise, no misconduct by military judge and no prejudice to accused.

2.United States v. Knight, 41 M.J. 867 (A. Ct. Crim. App. 1995).  Three senior enlisted court members solicited daily information from driver about his opinions regarding witness veracity, medical testimony, and what transpired during Article 39(a) sessions.  Defense motion for mistrial made during deliberations denied.  CA grants immunity to members in post-trial Article 39(a) session.  ACCA said SJA, CA, and military judge “were remiss” in failing to apply presumption of prejudice absent clear and positive showing by Government. 

 

XIV.APPENDIX - COURT-MARTIAL PERSONNEL SUMMARY

  MAJOR POINT SUMMARY

The Convening Authority

  • A convening authority (CA) has personal responsibility to select members and refer cases to courts-martial.  Article 25(e) and Article 1(9), UCMJ.  When considering selection and referral issues, look at the practical effect of the action as well as the RCMs to ensure that this is an appropriate situation for application of the practical effects test.
  • A convening authority with a personal interest in a case is disqualified from referring a case to trial and taking most other actions.  A convening authority with a statutory disqualification is also disqualified from referring a case to a GCM or SPCM, but can appoint the Article 32 investigator and make a recommendation on the disposition of the case.

Accused’s Rights:  Counsel Qualifications and Pro Se Representation

  • The accused is entitled to qualified counsel at trial.  When confronted with issues regarding counsel qualifications, determine whether the defect results in prejudice to the accused.  Such defects are, however, nonjurisdictional.
  • Regarding prior representation, determine on the record 1) whether there was former representation, 2) whether there was a substantial relationship between the subject matters, and 3) whether there was a subsequent proceeding.
  • An accused may proceed pro se if military judge makes the accused aware on the record of the disadvantages of self-representation and secures a voluntary and knowing waiver of counsel.

Court Members

  • CA may violate the law if she uses anything other than the Article 25(e) criteria (age, experience, education, training, length of service, judicial temperament) to select members.  Rank may not be a sole selection criterion.  Gender or race may be a criterion if the CA is seeking to include members of these categories for purposes of fairness and cross-sectional representation; however, lack of evidence of a benign intent may be construed against the government.  The CA’s motive is crucial.
  • CA cannot systematically exclude otherwise qualified personnel.  See US v. Bartlett, 66 M.J. 426 (C.A.A.F. 2008)
  • Enlisted members CAN be from the accused’s company-size unit, but a military judge would likely grant a challenge against such a member. 

The Military Judge

  • A military judge must carefully consider motions for recusal.  The standard is: a military judge should disqualify himself when his partiality might reasonably be questioned.  To ensure that such motions are properly handled, the military judge should follow RCM 902 by making full disclosure on the record of the potentially disqualifying matter, and permit voir dire and challenge.  When in doubt, the military judge should grant recusal.
  • The MJ must be careful not to engage in judicial advocacy.  The MJ should not assist one side or the other through questioning witnesses or praising witnesses.
  • The MJ must be mindful not to discuss cases with other court personnel.  Such contact or discussion may lead to situations where drivers, bailiffs and court reporters communicate to others their interpretation of MJ comments about findings or sentence, raising issues of partiality and unfairness.
  • If the MJ engages in a “Bridging the Gap” session, he should scrupulously keep the core of the deliberative process privileged.

Trial By Judge Alone or by a panel of ⅓ enlisted members

  • Article 16 requires that the accused make a forum request in writing or orally on the record.  To eliminate the possibility of error, the MJ should obtain an oral or written forum request on the record, especially in trials with multiple pretrial proceedings.  Other means might substantially comply with Article 16 (counsel makes request in accused presence; request made after assembly).
  • The doctrine of substantial compliance applies to requests for trial by one-third enlisted members as well.  Such requests are controlled by Article 25, UCMJ.

Trial In Absentia  4

 

Presence 4 4 4

 

  • Trial in absentia is only possible after an effective arraignment.  The MJ must ensure that the accused is given an opportunity to have the charges read, and then call upon the accused to plead.  Arraignment does not include entry of the plea.  See RCM 904 for requirements of arraignment. 
  • The UCMJ and R.C.M. require that all parties to a trial be physically present in one occasion to conduct valid court-martial proceedings.  This ensures that the MJ is able to preside over the trial, and evaluate whether the accused genuinely desires to proceed with a particular forum or waive or pursue rights under the Constitution and UCMJ.

 

 

 

XV.Appendix – pretrial flowchart

 

 

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