Appendix Court-Martial Personnel Summary

Appendix court-martial personnel summary

Appendix court-martial personnel summary

MAJOR POINT

SUMMARY

militarydefenselawyers181The Convening Authority

A convening authority (CA) has personal responsibility to select members and refer cases to courts-martial. Article 25(d) 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 referral action, but can appoint the Article 32 investigator and make a recommendation on the disposition of the case.

Accused’s Rights: Counsel

The accused is entitled to qualified counsel at trial. When Qualifications and Pro Se confronted with issues regarding counsel qualifications, determine Representation whether the defect results in prejudice to the accused. Such defects are, however, nonjurisdictional.

Regarding prior representation, determine on the record whether there was former representation, whether there was a substantial relationship between the subject matters, and 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(d) 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. 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 cannot be from the accused’s company-size unit. A military judge should grant a challenge against such a member. This issue, however, is waivable.

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 Article 16 requires that the accused make a forum request in a panel of enlisted

writing or orally on the record. To eliminate the possibility of members 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

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.

Presence

Arraignment does not include entry of the plea. See RCM 904 for requirements of arraignment. The UCMJ and RCMs 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.