JAG CENTRALThe world's first weblog devoted to military justice and military law issues.
Tuesday, August 09, 2005
NEW CAAF OPINION: U.S. v. ALEXANDER
Is the failure to demonstrate in the record of trial a personal election of a panel containing enlisted members procedural or jurisdictional error? On Aug. 4, 2005, the U.S. Court of Appeals for the Armed Forces answered that question when affirming a conviction in U.S. v. Alexander, No. 04-0677.
Article 25(c)(1), UCMJ (10 U.S.C. 825(c)(1)), and R.C.M. 903(b)(2) both direct that an accused enlisted servicemember has the right to have a panel containing some members. However, both provisions also require the accused to make a personal election for enlisted panel members.
Both parties on appeal stipulated that the record of trial was silent as to whether a personal election was made by the accused, raising a presumption of error. The parties disagreed, however, as to the effect of the error. The accused argued that the failure to elect the type of panel rendered the court martial without jurisdiction, making him entitled to immediate relief. The government argued that the failure to record such an election is merely procedural error. As such, the accused must demonstrate prejudice in order to secure reversal, and the government argued there was no prejudice.
The court ruled that the error was merely procedural, and there was no prejudice. The court reasoned that previous cases in which a failure to record was present ruled that such an error was procedural when there was substantial evidence that an election took place despite the failure to record. The court held that in this case, since the accused was advised of the right to elect enlisted members, because the members were empaneled in his presence, because he went ahead with the trial in front of these members, and because he never objected, that a personal election was made.
Judges Effron and Gierke dissented, based on their analysis of the facts. They both agreed that, in other cases, such a failure to record the personal election of enlisted panel members could be merely procedural in nature, IF substantial evidence of the election existed. However, the judges disagreed with the court as to whether such evidence existed in this case.
Categories: CAAF, Appellate
Article 25(c)(1), UCMJ (10 U.S.C. 825(c)(1)), and R.C.M. 903(b)(2) both direct that an accused enlisted servicemember has the right to have a panel containing some members. However, both provisions also require the accused to make a personal election for enlisted panel members.
Both parties on appeal stipulated that the record of trial was silent as to whether a personal election was made by the accused, raising a presumption of error. The parties disagreed, however, as to the effect of the error. The accused argued that the failure to elect the type of panel rendered the court martial without jurisdiction, making him entitled to immediate relief. The government argued that the failure to record such an election is merely procedural error. As such, the accused must demonstrate prejudice in order to secure reversal, and the government argued there was no prejudice.
The court ruled that the error was merely procedural, and there was no prejudice. The court reasoned that previous cases in which a failure to record was present ruled that such an error was procedural when there was substantial evidence that an election took place despite the failure to record. The court held that in this case, since the accused was advised of the right to elect enlisted members, because the members were empaneled in his presence, because he went ahead with the trial in front of these members, and because he never objected, that a personal election was made.
Judges Effron and Gierke dissented, based on their analysis of the facts. They both agreed that, in other cases, such a failure to record the personal election of enlisted panel members could be merely procedural in nature, IF substantial evidence of the election existed. However, the judges disagreed with the court as to whether such evidence existed in this case.
Categories: CAAF, Appellate
