U.S. v. King, 83 M.J. 115

First Principles: Jurisdiction: Of Trial Court

1. court members are, unless properly waived, an indispensable jurisdictional element of a general court-martial
2. jurisdictional error in the convening of a court-martial occurs when a court-martial is not constituted in accordance with the UCMJ; a court-martial composed of members who are barred from participating by operation of law, or who were never detailed by the convening authority, is improperly constituted and the findings must be set aside as invalid because such error is jurisdictional
3. administrative errors in the drafting of a convening order are not necessarily fatal to jurisdiction, and may be tested for prejudice under Article 59(a), UCMJ
4. in this case, the error arising from the government’s failure to document at trial the convening authority’s reason for excusing a member was an administrative error and not jurisdictional in nature; and the member’s unanticipated assignment to a professional military school was a military exigency, not a temporary inconvenience, and a proper reason and good cause for excusal

Military Justice Personnel: Court Members: Generally

1. court members are, unless properly waived, an indispensable jurisdictional element of a general court-martial
2. military law distinguishes between the excusal of detailed members before and after assembly; prior to assembly of the court-martial, the convening authority has unfettered power to excuse any member of the court from participating in the case; however, after assembly, no member of a general or special court-martial may be absent or excused unless excused as a result of a challenge, excused by the military judge for physical disability or other good cause, or excused by order of the convening authority for good cause
3. after assembly, new members may only be detailed to a court-martial panel if the panel has fallen below quorum due to lawful excusals; and if the court-martial is below quorum, the trial may not proceed unless the convening authority details new members sufficient in number to provide a quorum
4. jurisdictional error in the convening of a court-martial occurs when a court-martial is not constituted in accordance with the UCMJ; a court-martial composed of members who are barred from participating by operation of law, or who were never detailed by the convening authority, is improperly constituted and the findings must be set aside as invalid because such error is jurisdictional
5. administrative errors in the drafting of a convening order are not necessarily fatal to jurisdiction, and may be tested for prejudice under Article 59(a), UCMJ
6. in this case, the error arising from the government’s failure to document at trial the convening authority’s reason for excusing a member was an administrative error and not jurisdictional in nature; and the member’s unanticipated assignment to a professional military school was a military exigency, not a temporary inconvenience, and a proper reason and good cause for excusal
7. an accused is not entitled to a specific panel member

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. a CCA cannot consider matters outside the entire record, but a CCA may attach documents when doing so is necessary for resolving issues raised by materials in the record
2. in this case, where the record did not provide the CCA with information about the circumstances under which a panel member had been relieved or excused and the documents proposed to be attached to the record were necessary to resolve the question of whether the panel was improperly constituted, the CCA did not abuse its discretion by attaching relevant materials that were outside the record to resolve appellant’s member selection issue

Trial Stages: Appeals: Preservation of Error / Plain Error

1. an appellate court typically views court-martial composition issues through a forfeiture lens rather than a waiver lens and are tested for plain error
2. in this case, the administrative error committed by the government in failing to show good cause on the record for the excusal of a court member is reviewed for plain error where appellant did not challenge the government’s failure at trial
3. under the plain error standard of review, an appellant bears the burden of establishing (1) there is error, (2) the error is clear or obvious, and (3) the error materially prejudiced a substantial right
4. in this case, appellant failed to meet his burden of showing prejudice arising from the government’s failure at trial to place on the record the good cause for excusing a court member where (1) appellant was fully aware of the member’s absence at trial but did not raise an objection or concern, (2) the excusal of the member did not result in any interlopers sitting on the panel, and (3) the change in the members of the panel did not change the number of votes appellant needed to obtain an acquittal because there were still five panel members

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. an appellate court reviews whether an issue is waived de novo
2. an appellate court reviews whether a lower court properly attached documents for an abuse of discretion
3. an appellate court reviews the issue of jurisdiction de novo
4. an appellate court’s review for prejudice is de novo
5. an appellate court typically views court-martial composition issues through a forfeiture lens rather than a waiver lens and are tested for plain error
6. under the plain error standard of review, an appellant bears the burden of establishing (1) there is error, (2) the error is clear or obvious, and (3) the error materially prejudiced a substantial right

Trial Stages: Appeals: Waiver

1. an appellate court cannot review waived issues because a valid waiver leaves no error to correct on appeal
2. the waiver language of the 2016 version of RCM 905(e) does not mandate a waiver analysis in the member selection context
3. an appellate court typically views court-martial composition issues through a forfeiture lens rather than a waiver lens and are tested for plain error