U.S. v Townes, 52 M.J. 275

First Principles: Jurisdiction: Of Trial Court

1. the military judge erred in not obtaining on the record the accused’s personal request for trial by enlisted members; however, on this record, the error was not jurisdictional in that there was sufficient indication by appellant orally and on the record that he personally requested enlisted members

Military Justice Personnel: Court Members: Enlisted Members

1. the military judge erred in not obtaining on the record the accused’s personal request for trial by enlisted members; however, on this record, there was substantial compliance with Article 25, UCMJ, and the error was not materially prejudicial to the accused
2. although the military judge erred in not obtaining on the record the accused’s personal request for trial by enlisted members, there was substantial compliance with Article 25, UCMJ, and the record as a whole makes clear that the elections was the accused’s choice, where: (1) the accused was advised of his rights concerning the forum; (2) in the accused’s presence, defense counsel informed the military judge that the defense elected trial by officer and enlisted members; (3) officer and enlisted members were impaneled and subject to lengthy voir dire in the accused’s presence; (4) the members were sworn and the trial continued for 10 days in the accused’s presence; (5) the accused testified for an entire day before the members; and, (6) there was no allegation of coercion or that the accused was incompetent to make a knowing and intelligent decision