(a) Composition and
personnel of courts-martial.
(1) Composition
of courts-martial (ML, 130.16).
(i) General
courts-martial. General courts-martial consist of:
(a) a military judge and not less than five
members; or
(b) a military judge
alone if requested by the accused and approved under N.Y.R.C.M. 903.
(ii) Special courts-martial.
Special courts-martial consist of:
(a) not
less than three members;
(b) a
military judge and not less than three members; or
(c) a military judge alone if detailed and if
requested and approved under N.Y.R.C.M. 903.
(2) Counsel in general and special
courts-martial. Military trial and defense counsel must be detailed to general
and special courts-martial. Assistant trial and associate or assistant defense
counsel may be detailed (ML, 130.27[a]).
(3) Other personnel. Other personnel, such as
reporters, interpreters, bailiffs, clerks, escorts, and orderlies, may be
detailed or employed as appropriate but need not be detailed by the convening
authority personally (ML, 130.28).
(b) Qualifications and duties of personnel of
courts-martial.
(1) Members.
(i) Qualifications (ML, 130.25). The members
detailed to a court-martial shall be those persons who in the opinion of the
convening authority are best qualified for the duty by reason of their age,
education, training, experience, length of service, and judicial temperament.
Each member shall be in a duty status and must be:
(a) an officer; or
(b) a warrant officer, except when the
accused is an officer; or
(c) an
enlisted person, if the accused is an enlisted person and has made a timely
request under N.Y.R.C.M. 503(a)(2), for members of whom at least one-third are
enlisted persons.
(ii)
Duties. The members of a court-martial determine whether the accused is proven
guilty and, if necessary, adjudge a proper sentence, based on the evidence and
in accordance with the instructions of the military judge. Each member has an
equal voice and vote with other members in deliberating upon and deciding all
matters submitted to them, except as otherwise specifically provided in these
rules. No member may use rank or position to influence another member. No
member of a court-martial may have access to or use in any open or closed
session this Chapter, reports of decided cases, or any other reference
material, except the president of a special court-martial without a military
judge may use such materials in open session.
(2) President.
(i) Qualifications. The president of a
court-martial must be the detailed member senior in rank then
serving.
(ii) Duties. The president
has the same duties as the other members and also:
(a) presides over closed sessions of the
members of the court-martial during their deliberations;
(b) speaks for the members of the
court-martial when announcing the decision of the members of requesting
instructions from the military judge; and
(c) in a special court-martial with a
military judge, performs the duties assigned by this Chapter to the military
judge except as otherwise expressly provided (ML, 130.26).
(3) Qualifications of military
judge. A military judge must be an officer who is a member of the bar of a
force of the organized militia on the State reserve list or State retired list,
and who is certified to be qualified for duty as a military judge by the State
judge advocate. In addition, the military judge of a general court-martial must
be designated for such duties by the State judge advocate, or his designee,
certified to be qualified for duty as a military judge of a general
court-martial, and assigned and directly responsible to the State judge
advocate general or his designee. As used in this paragraph, "military judge"
does not include the president of a special court-martial without a military
judge.
(4) Counsel.
(i) Certified counsel required. Only persons
qualified under ML, 130-27(b) (in the case of general courts-martial), or ML,
130.27(c) (in the case of special courts-martial), as competent to perform
duties as counsel in courts-martial may be detailed as defense counsel or
associate defense counsel in general or special courts-martial, or as trial
counsel in general courts-martial.
(ii) Other military counsel. Any officer may
be detailed as trial counsel in special courts-martial, or as assistant trial
counsel or assistant defense counsel in general or special
courts-martial.
(iii)
Qualifications of individual military and civilian defense counsel. Individual
military or civilian defense counsel who represents an accused in a
court-martial must be:
(a) a member of the
bar of a Federal court or of the bar of the highest court of a State;
or
(b) if not a member of such a
bar, a lawyer who is authorized by a recognized licensing authority to practice
law and is found by the military judge to be qualified to represent the accused
upon a showing to the satisfaction of the military judge that the counsel has
appropriate training and familiarity with the general principles of criminal
law which apply in a court-martial.
(iv) Disqualifications. No person is to act
as trial counsel or assistant trial counsel or, except when expressly requested
by the accused, as defense counsel or associate or assistant defense counsel in
any case in which that person is or has been:
(a) the accuser;
(b) an investigating officer;
(c) a military judge; or
(d) a member.
No person who has acted as counsel or assistant counsel for
a party may serve as counsel or assistant counsel for an opposing party in the
same case (ML, 130.27[a]).
(v) Duties of trial and assistant trial
counsel. The trial counsel prosecutes cases on behalf of the State and causes
the record of trial of such cases to be prepared (ML, 130.38[a]). Under the
supervision of trial counsel an assistant trial counsel may perform any act or
duty which trial counsel may perform under law, regulation, or custom of the
service (ML, 130.38[d]).
(vi)
Duties of defense and associate or assistant defense counsel. Defense counsel
represents the accused in matters under the code and these rules arising from
the offenses of which the accused is then suspected or charged (ML, 130.38[b]).
Under the supervision of the defense counsel an associate or assistant defense
counsel may perform any act or duty which a defense counsel may perform under
law, regulation, or custom of the service (ML, 130.38[e]).
(5) Interpreters, reporters, escorts,
bailiffs, clerks, and guards.
(i)
Qualifications. Interpreters and reporters shall have the same qualifications
as persons performing equivalent functions in the courts of the State of New
York, or on active duty in the military forces of the United States. Any person
who is not disqualified under subparagraph (ii) of this paragraph may serve as
escort, bailiff, clerk, or orderly, subject to removal by the military judge
(ML, 130.28).
(ii)
Disqualifications. In addition to any disqualifications which may be prescribed
by the Chief of Staff to the Governor, no person is to act as interpreter,
reporter, escort, bailiff, clerk, or orderly in any case in which that person
is or has been in the same case:
(a) the
accuser;
(b) a witness;
(c) an investigating officer;
(d) counsel for any party; or
(e) a member of the court-martial or of any
earlier court-martial of which the trial is a rehearing or new or other
trial.
(iii) Duties. In
addition to such other duties as the Chief of Staff to the Governor may
prescribe, the following persons may perform the following duties:
(a) Interpreters. Interpreters must interpret
for the court-martial or for an accused who does not speak or understand
English.
(b) Reporters. Reporters
must record the proceedings and testimony and must transcribe them so as to
comply with the requirements for the record of trial as prescribed in these
rules.
(c) Others. Other personnel
detailed for the assistance of the court-martial are to have such duties as may
be imposed by the military judge.
(iv) Payment of reporters, interpreters. The
Chief of Staff to the Governor may prescribe regulations for the payment of
allowances, expenses, per diem, and compensation of reporters and
interpreters.
(6) Action
upon discovery of disqualification or lack of qualifications. Any person who
discovers that a person detailed to a court-martial is disqualified or lacks
the qualifications specified by this subdivision must cause a report of the
matter to be made before the court-martial is first in session to the convening
authority or, if discovered later, to the military judge.
(c) Detailing members, military judge, and
counsel.
(1) Members.
(i) In general. The convening authority must
detail qualified persons as members for courts-martial (ML,
130.25[d][2]).
(ii) Enlisted
members. An enlisted accused may, before assembly, request orally on the record
or in writing that enlisted persons serve as members of the general or special
court-martial to which that accused's case has been or will be referred. If
such a request is made, an enlisted accused may not be tried by a court-martial
the membership of which does not include enlisted members in a number
comprising at least one-third of the total number of members unless eligible
enlisted members cannot be obtained because of physical conditions or military
exigencies. If the appropriate number of enlisted members cannot be obtained,
the court-martial may be assembled, and the trial may proceed without them, but
the convening authority shall make a detailed written explanation why enlisted
members could not be obtained which must be appended to the record of trial
(ML, 130.25[c]).
(iii) Members from
another command or component. A convening authority may detail as members of
general and special court-martial persons under that convening authority's
command or made available by their commander, even if those persons are members
of a force of the organized militia different from that of the convening
authority.
(2) Military
judge.
(i) By whom detailed. The military
judge must be detailed by the convening authority and is directly responsible
to the State judge advocate.
(ii)
Record of detail. The order detailing a military judge must be reduced to
writing and included in the record of trial or announced orally on the record
at the court-martial. The writing or announcement must indicate by whom the
military judge was detailed.
(iii)
Military judge from a different armed force. A military judge from one force of
the organized militia may be detailed to a court-martial convened by another
force of the organized militia when permitted by the State judge advocate. The
State judge advocate may delegate authority to make military judges available
for this purpose.
(3)
Counsel.
(i) By whom detailed. For general
and special court-martial, trial and defense counsel, assistant trial and
defense counsel, and associate defense counsel are to be detailed by the
authority convening the court-martial (ML, 130.27[a]). If authority to detail
counsel has been delegated to a person, that person may detail himself or
herself as counsel for a court-martial.
(ii) Record of detail. The order detailing a
counsel must be reduced to writing and included in the record of trial or
announced orally on the record at the court-martial. The writing or
announcement must indicate by whom the counsel was detailed.
(iii) Counsel from a different component. A
person from one force of the organized militia may be detailed to serve as
counsel in a court-martial in a different force of the organized militia when
permitted by the State judge advocate. The State judge advocate may delegate
authority to make persons available for this purpose.
(d) Convening courts-martial.
(1) In general. A court-martial is created by
a convening order of the convening authority.
(2) Who may convene courts-martial.
(i) General courts-martial. General
courts-martial may be convened by order of the Chief of Staff to the Governor,
the commander of a force of the organized militia, the commanding officer of a
division or corresponding unit of the Army National Guard, or the commanding
officer of a wing or corresponding unit of the Air National Guard (ML,
130.22).
(ii) Special
courts-martial. Unless otherwise limited by competent authority, special
courts-martial may be convened by persons occupying positions designated in ML,
130.23(a).
(a) Definition. For purposes of
ML, 130.22 and 130.23(a), a command or unit is separate or detached when
isolated or removed from the immediate disciplinary control of a superior in
such manner as to make its commander the person held by superior commanders
primarily responsible for discipline. Separate or detached is used in a
disciplinary sense and not necessarily in a tactical or physical
sense.
(b) Determination. If a
commander is in doubt whether the command is separate or detached, the matter
is to be determined:
(1) in the Army National
Guard or the Air National Guard by the officer exercising general court-martial
jurisdiction over the command; or
(2) in the Naval Militia, by the flag or
general officer in command or the senior officer present who designated the
detachment.
(iii) Summary courts-martial (see N.Y.R.C.M.
1302[a]).
(iv) Delegation
prohibited. The power to convene courts-martial may not be delegated.
(3) Disqualification.
(i) Accuser. An accuser may not convene a
general or special court-martial for the trial of the person accused (ML,
130.23[b]).
(ii) Other. A convening
authority junior in rank to an accuser may not convene a general or special
court-martial for the trial of the accused unless that convening authority is
superior in command to the accuser. A convening authority junior in command to
an accuser may not convene a general or special court-martial for the trial of
the accused.
(iii) Action when
disqualified. When a commander who would otherwise convene a general or special
court-martial is disqualified in a case, the charges must be forwarded to a
superior competent authority for disposition. That authority may personally
dispose of the charges or forward the charges to another convening authority
who is superior in rank to the accuser, or, if in the same chain of command,
who is superior in command to the accuser.
(4) Convening orders.
(i) General and special courts-martial. A
convening order for a general or special court-martial must designate the type
of court-martial and detail the members and may designate where the
court-martial will meet. If the convening authority has been designated by the
Chief of Staff to the Governor, the convening order must so state.
(ii) Summary courts-martial. A convening
order for a summary court-martial must designate that it is a summary
court-martial and detail the summary court-martial, and may designate where the
court-martial will meet. If the convening authority has been designated by the
Chief of Staff to the Governor, the convening order must so state.
(iii) Additional matters. Additional matters
to be included in convening orders may be prescribed by the Chief of Staff to
the Governor.
(5) Place.
The convening authority must ensure that an appropriate location and facilities
for courts-martial are provided.
(e) Changes of members, military judge, and
counsel.
(1) In general. Subject to this
subdivision, the members, military judge, and counsel may be changed by an
authority competent to detail such persons. Members also may be excused as
provided in subclause (3)(i)(b)(2) and clause (3)(ii)(a) of this
subdivision.
(2) Procedure. When
new persons are added as members or counsel substitutions are made as to any
members or counsel or the military judge, such persons are to be detailed in
accordance with N.Y.R.C.M. 503. An order changing the members of the
court-martial, except one which excuses members without replacement, must be
reduced to writing before authentication of the record of trial.
(3) Changes of members (see ML, 130.29).
(i) Before assembly.
(a) By convening authority. Before the
court-martial is assembled, the convening authority may change the members of
the court-martial without showing cause.
(b) By convening authority's delegate.
(1) Delegation. The convening authority may
delegate authority to excuse individual members to the staff judge advocate or
legal officer or other principal assistant to the convening
authority.
(2) Limitations. Before
the court-martial is assembled, the convening authority's delegate may excuse
members without cause shown; however, no more than one-third of the total
number of members detailed by the convening authority may be excused by the
convening authority's delegate in any one court-martial. After assembly the
convening authority's delegate may not excuse members.
(ii) After assembly.
(a) Excusal. After assembly no member may be
excused, except:
(1) by the convening
authority for good cause shown on the record;
(2) by the military judge for good cause
shown on the record; or
(3) as a
result of challenge under N.Y.R.C.M. 912.
(b) New members. New members may be detailed
after assembly only when, as a result of excusals under clause (a) of this
subparagraph, the number of members of the court-martial is reduced below a
quorum, or the number of enlisted members, when the accused has made a timely
written request for enlisted members, is reduced below one-third the total
membership.
(4) Changes of detailed counsel.
(i) Trial counsel. An authority competent to
detail trial counsel may change the trial counsel and any assistant trial
counsel at any time without showing cause.
(ii) Defense counsel.
(a) Before formation of attorney-client
relationship. Before an attorney-client relationship has been formed between
the accused and detailed defense counsel or associate or assistant defense
counsel, an authority competent to detail defense counsel may excuse or change
such counsel without showing cause.
(b) After formation of attorney-client
relationship. After an attorney-client relationship has been formed between the
accused and detailed defense counsel or associate or assistant defense counsel,
an authority competent to detail such counsel may excuse or change such counsel
only:
(1) under N.Y.R.C.M.
506(b)(3);
(2) upon request of the
accused or application for withdrawal by such counsel under N.Y.R.C.M. 506(c);
or
(3) for other good cause shown
on the record.
(5) Change of
military judge.
(i) Before assembly. Before
the court-martial is assembled, the military judge may be changed by an
authority competent to detail the military judge, without cause shown on the
record.
(ii) After assembly. After
the court-martial is assembled, the military judge may be changed by an
authority competent to detail the military judge only when, as a result of
disqualification under N.Y.R.C.M. 902, or for good cause shown, the previously
detailed military judge is unable to proceed.
(6) Good cause. For purposes of this
subdivision, good cause includes physical disability, military exigency, and
other extraordinary circumstances which render the member, counsel, or military
judge unable to proceed with the court-martial within a reasonable time. Good
cause does not include temporary inconveniences which are incident to normal
conditions of military life.
(f) Accused's rights to counsel.
(1) In general. The accused has the right to
be represented before a general or special or summary court-martial by civilian
counsel if provided at no expense to the State. The accused has the right to be
represented by either the military counsel detailed under ML, 130.27, or
military counsel of the accused's own selection, if reasonably available before
a general or special court-martial. The accused is entitled to be represented
by both the military counsel detailed under ML, 130.27, and military counsel of
the accused's own selection, if reasonably available, if the accused so
requests, in which event the detailed military counsel will act as associate
counsel to the individual military counsel (ML, 130.38[b]).
(2) Individual military counsel.
(i) Reasonably available. Subject to this
paragraph, the Chief of Staff to the Governor must define "reasonably
available". While so assigned, the following persons are not reasonably
available to serve as individual military counsel because of the nature of
their duties or positions:
(a) a general or
flag officer;
(b) a trial or
appellate military judge;
(c) a
trial counsel;
(d) an appellate
defense or government counsel;
(e)
a principal legal advisor to a command, organization, or agency and, when such
command, organization, or agency has general court-martial jurisdiction, the
principal assistant of such an advisor;
(f) An instructor or student at a service
school or academy.
The Chief of Staff to the Governor may determine other
persons to be not reasonably available because of the nature or
responsibilities of their assignments, geographic considerations, exigent
circumstances, or military necessity. A person who is a member of a force of
the organized militia different from that of which the accused is a member is
reasonably available to serve as individual military counsel for such accused
to the same extent as that person is available to serve as individual military
counsel for an accused in the same force of the organized militia as the person
requested. The Chief of Staff to the Governor may prescribe circumstances under
which exceptions may be made to the prohibitions in this paragraph when merited
by the existence of an attorney-client relationship regarding matters relating
to a charge in question. However, if the attorney-client relationship arose
solely because the counsel represented the accused on review under ML 130.67,
this exception does not apply.
(ii) Procedure. Subject to this paragraph,
the Chief of Staff to the Governor may prescribe procedures for determining
whether a requested person is reasonably available to act as individual
military counsel. Requests for an individual military counsel are to be made by
the accused or the detailed defense counsel through the trial counsel to the
convening authority. If the requested person is among those not reasonably
available under subparagraph (i) of this paragraph or under regulations of the
Chief of Staff to the Governor, the convening authority must deny the request
and notify the accused, unless the accused asserts that there is an existing
attorney-client relationship regarding a charge in question or that the person
requested will not, at the time of the trial or investigation for which
requested, be among those so listed as not reasonably available. If the accused
makes such claim, or if the person is not among those so listed as not
reasonably available. If the accused's request makes such a claim, or if the
person is not among those so listed as not reasonably, the convening authority
must forward the request to the commander or head of the organization,
activity, or agency to which the requested person is available in accordance
with the procedure prescribed by the Chief of Staff to the Governor. This
determination is a matter within the sole discretion of that authority. An
adverse determination may be reviewed upon request of the accused through that
authority to the next higher commander or level of supervision.
(3) Excusal or withdrawal. Except
as otherwise provided in N.Y.C.R.M. 505(d)(2) and paragraph (1) of this
subdivision, defense counsel may be excused only with the express consent of
the accused, or by the military judge upon application for withdrawal by the
defense counsel for good cause shown.
(4) Waiver. The accused may expressly waive
the right to be represented by counsel and may thereafter conduct the defense
personally. Such waiver is to be accepted by the military judge only if the
military judge finds that the accused is competent to understand the
disadvantages of self-representation and that the waiver is voluntary and
understanding. The military judge may require that a defense counsel remain
present even if the accused waives counsel and conducts the defense personally.
The right of the accused to conduct the defense personally may be revoked if
the accused is disruptive or fails to follow basic rules of decorum and
procedure.
(5) Nonlawyer present.
Subject to the discretion of the military judge, the accused may have present
and seated at the counsel table for purpose of consultation persons not
qualified to serve as counsel under N.Y.R.C.M. 502.